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223
Arming Public Protests
Timothy Zick
*
ABSTRACT: Public protests have become armed events, with protesters and
counter-protesters openly carrying firearms—generally pursuant to state law.
Many view the presence of firearms at protest events as wholly incompatible
with the exercise of First Amendment free speech and assembly rights.
Although the Supreme Court has yet to decide whether there is a Second
Amendment right to openly carry firearms in public, all but a small handful
of states in the United States provide some legal protection for open carry.
Taking the law as it currently stands, this Article provides a comprehensive
assessment of the options available to officials who seek to regulate open carry
at public protests. It considers a number of measures, from bans on open carry
during protest events, to measures aimed at armed private militias, to more
limited restrictions on the place or manner of open carry. The Article assesses
these and other regulatory alternatives from the perspective of both the First
Amendment and the Second Amendment. It generally rejects First Amendment
arguments for protecting, or limiting, open carry at public protests. The
Article also concludes that some measures restricting open carry at protest
events would likely satisfy current interpretations of the Second Amendment.
Finally, using longstanding experience with public First Amendment rights
as a rough guide, the Article considers the primary factors that will likely
influence the nature and scope of the public Second Amendment.
I.
INTRODUCTION ........................................................................... 224
II. THE PUBLIC FIRST AND SECOND AMENDMENTS ........................... 230
A. PUBLIC SPEECH AND ASSEMBLY............................................... 230
B. PUBLIC KEEPING AND BEARING OF ARMS ................................. 233
C. THE COMPATIBILITY QUESTION .............................................. 236
III. ARMING THE FIRST AMENDMENT ................................................. 241
A. A FIRST AMENDMENT RIGHT TO OPEN CARRY AT
P
ROTESTS? ............................................................................ 241
*
Mills E. Godwin, Jr. Professor of Law, William & Mary Law School. Special thanks to
Joseph Blocher for his insights concerning the Second Amendment issues addressed in the
Article. Thanks also to Paul Hellyer for excellent research assistance.
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224 IOWA LAW REVIEW [Vol. 104:223
B. UNCOVERED ARMS SPEECH ..................................................... 245
C. MANNER AND PLACE REGULATIONS ........................................ 246
D. EXPRESSIVE ASSOCIATION AND “PEACEABLE” ASSEMBLIES ......... 250
E. EXPRESSIVE CHILL AS A GROUND FOR LIMITING OPEN
C
ARRY .................................................................................. 252
IV. DISARMING PUBLIC PROTESTS ..................................................... 253
A. EXISTING FIREARMS OFFENSES ................................................ 254
B. BANNING ARMED PRIVATE MILITIAS AND OTHER ARMED
ASSEMBLIES .......................................................................... 254
C. GOING ARMED TO THE TERROR OF THE PEOPLE ....................... 257
D. PLACE AND TIME/EVENT REGULATIONS .................................. 260
E. MANNER REGULATIONS ......................................................... 264
F. ARMS-SPECIFIC RESTRICTIONS ................................................ 265
V. THE FUTURE PUBLIC SECOND AMENDMENT ................................ 267
A. GENERAL LESSONS FROM THE PUBLIC FIRST AMENDMENT ........ 268
B. EXERCISING AND POLICING OPEN CARRY ................................. 274
C. BALANCING EXPRESSIVE AND OPEN CARRY RIGHTS ................... 278
D. JUSTIFYING OPEN CARRY ........................................................ 280
E. LOOKING FORWARD ............................................................... 282
VI. CONCLUSION .............................................................................. 284
I. I
NTRODUCTION
In the United States, public protests, demonstrations, rallies, and
marches have become armed events.
1
Participants are openly carrying
firearms, in most cases pursuant to state laws protecting this activity.
2
During
the Summer of 2017, referred to by some as “the Summer of Hate,”
3
participants at a “Unite the Right” rally in Charlottesville Virginia, openly
carried long rifles and side arms.
4
In one instance, a firearm was discharged
1. See Katlyn E. DeBoer, Clash of the First and Second Amendments: Proposed Regulation of Armed
Protests, 45 H
ASTINGS CONST. L. Q. 333, 337–40 (2018) (describing several recent examples of
armed protests). I will refer to “protests” generally, as a shorthand for other types of events
including demonstrations, marches, and rallies.
2. As used in this Article, “open carry” refers to the practice of carrying firearms in plain
view in public spaces.
3. See, e.g., Tim Morris, ‘Summer of Hate’ Should be the End of the Alt-Right Movement: Opinion,
T
IMES-PICAYUNE (Aug. 15, 2017), https://www.nola.com/opinions/index.ssf/2017/08/summer_
of_hate_should_be_the_e.html.
4. See Siva Vaidhyanathan, Why the Nazis Came to Charlottesville, N.Y.
TIMES (Aug. 14, 2017),
https://www.nytimes.com/2017/08/14/opinion/why-the-nazis-came-to-charlottesville.html
(discussing presence of militia groups at Charlottesville rally).
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2018] ARMING PUBLIC PROTESTS 225
near a crowd of protesters but no one was injured as a result.
5
At the protest,
the day’s sole fatality occurred as a result of a possible vehicular homicide.
6
Nevertheless, the open and visible presence of firearms during such a large
and contentious public protest alarmed many participants, concerned public
officials, and may even have deterred law enforcement officers from
confronting certain protesters.
7
Despite having many opportunities to do so, the Supreme Court has yet
to decide whether there is a Second Amendment right to keep and bear arms
in public.
8
In District of Columbia v. Heller, the Court held that an individual
has a Second Amendment right to possess a firearms in the home for the
purpose of self-defense.
9
The Court has also held that the individual right to
keep and bear arms applies against states and localities.
10
The states have not
waited for a Supreme Court pronouncement on public carry rights. Nearly
every state now authorizes some form of a right to openly carry firearms in at
least some public places.
11
In fact, only three states ban open carry outright.
12
A few states ban the open carry of handguns, but not long guns (rifles and
shotguns), while a few states ban the open carry of long guns, but not
handguns.
13
Several states require a license to open carry and many impose
other restrictions on the practice, such as limiting open carry in specified
places or during certain hours of the day.
14
5. Frances Robles, As White Nationalist in Charlottesville Fired, Police ‘Never Moved,’ N.Y. TIMES
(Aug. 25, 2017), https://www.nytimes.com/2017/08/25/us/charlottesville-protest-police.html
(discussing police reaction to armed protesters).
6. Jonah Engel Bromwich & Alan Blinder, What We Know About James Alex Fields, Driver
Charged in Charlottesville Killing, N.Y.
TIMES (Aug. 13, 2017), https://www.nytimes.com/2017/08/
13/us/james-alex-fields-charlottesville-driver-.html. Two police officers were also killed, when
their surveillance helicopter crashed. Matthew Haag, Death of 2 State Troopers Adds Another Layer of
Tragedy in Charlottesville, N.Y.
TIMES (Aug. 14, 2017), https://www.nytimes.com/2017/08/14/
us/virginia-police-helicopter-crash.html.
7. See Joe Heim, Charlottesville Response to White Supremacist Rally is Sharply Criticized in Report,
W
ASH. POST (Dec. 1, 2017), https://www.washingtonpost.com/local/charlottesville-response-to-
white-supremacist-rally-sharply-criticized-in-new-report/2017/12/01/9c59fe98-d6a3-11e7-a986-d0a9
770d9a3e_story.html (noting criticism that police did not respond to armed protesters); see also
Robles, supra note 5.
8. See, e.g., Adam Liptak, Supreme Court Turns Down Case on Carrying Guns in Public,
N.Y.
TIMES (Jun. 26, 2017), https://www.nytimes.com/2017/06/26/us/politics/supreme-court-
guns-public-california.html.
9. District of Columbia v. Heller, 554 U.S. 570, 628–29 (2008).
10. McDonald v. City of Chi., 561 U.S. 742, 766 (2010).
11. For a 50-state survey of current laws relating to the open and concealed carrying of
firearms, see Open Carry: State by State, G
IFFORDS L. CTR. TO PREVENT GUN VIOLENCE, http://
lawcenter.giffords.org/gun-laws/state-law/50-state-summaries/open-carry-state-by-state (last updated
Nov. 16, 2017).
12. See id. (California, Florida, and Illinois).
13. See id.
14. Id.
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226 IOWA LAW REVIEW [Vol. 104:223
These legislative trends, along with an open carry movement that urges
its members to display firearms in public places, lie at the center of the
phenomenon of arming public protests.
15
Commentators have voiced
concerns that public protest will be chilled or even eliminated as a result of
the open presence of firearms at events.
16
Constitutional scholars have argued
that exercising First Amendment rights of speech and assembly is both
physically and theoretically incompatible with open carry at protest events.
17
Shortly after the Charlottesville rally, the American Civil Liberties Union
(“ACLU”) adopted a policy stating that it would no longer defend certain
groups that demonstrate while openly carrying firearms.
18
Critics of open
carry at public protests share a common concern that the presence of firearms
will transform public protests into threatening, intimidating, and violent
events.
19
Responding to these concerns, state and local officials have begun to
consider their options in terms of regulating open carry at protests. Some
have proposed restrictions on the size of protests near Civil War monuments
and other public places where armed protests have occurred.
20
Others have
turned to 19th-century laws prohibiting the open carrying of firearms “to the
terror of the public.”
21
These are merely opening salvos in what promises to
15. See Ian Urbina, Locked, Loaded, and Ready to Caffeinate, N.Y. TIMES (Mar. 7, 2010),
https://www.nytimes.com/2010/03/08/us/08guns.html (discussing the open carry movement).
16. See, e.g., John Feinblatt, Ban the Open Carry of Firearms, N.Y.
TIMES (Aug. 17, 2017),
https://www.nytimes.com/2017/08/17/opinion/open-carry-charlottesville.html (arguing for a
ban on open carry at public protests and in public places); David Frum, The Chilling Effects of Openly
Displayed Firearms, A
TLANTIC (Aug. 16, 2017), https://www.theatlantic.com/politics/archive/
2017/08/open-carry-laws-mean-charlottesville-could-have-been-graver/537087 (“Within metropolitan
areas, there is no reason—zero—that a weapon should ever be carried openly. The purpose is always
to intimidate—to frighten others away from their lawful rights, not only free speech and lawful
assembly, but voting as well.”).
17. See Gregory P. Magarian, Speaking Truth to Firepower: How the First Amendment Destabilizes
the Second, 91 T
EX. L. REV. 49, 95 (2012) (“Even keeping arms to enable insurrection would
undermine debate by fostering a climate of mistrust and fear.”); Darrell A.H. Miller, Guns as
Smut: Defending the Home-Bound Second Amendment, 109 C
OLUM. L. REV. 1278, 1309–10 (2009)
(“[T]he presence of a gun in public has the effect of chilling or distorting the essential channels
of a democracy—public deliberation and interchange.”).
18. Joe Palazzolo, ACLU Will No Longer Defend Hate Groups Protesting With Firearms, W
ALL ST. J.
(Aug. 17, 2017, 6:54 PM), https://www.wsj.com/articles/aclu-changes-policy-on-defending-hate-
groups-protesting-with-firearms-1503010167.
19. See McDonald v. City of Chi., 561 U.S. 742, 891 (2010) (Stevens, J., dissenting) (“Your
interest in keeping and bearing a certain firearm may diminish my interest in being and feeling
safe from armed violence.”).
20. See, e.g., Matthew Haag, Virginia Restricts Protests at Lee Monument in Richmond After Clashes,
N.Y.
TIMES (Nov. 20, 2017), https://www.nytimes.com/2017/11/20/us/robert-e-lee-monument-
richmond-virginia.html (discussing restrictions proposed in Richmond, Virginia).
21. See Dahlia Lithwick & Olivia Li, Can You Bring a Gun to a Protest?, S
LATE (Oct. 17, 2017,
10:45 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/protests_
might_be_on_place_you_can_t_carry_guns.html (discussing state enforcement of the offense of
“going armed to the terror of the public”).
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2018] ARMING PUBLIC PROTESTS 227
be a long-term debate about the presence of firearms at public protests.
Assuming the political will exists and no state constitutional provision stands
in the way, states can alter their open carry laws to address the problem of
public protests. Indeed, as discussed in Part IV some states have already done
so.
22
However, in many cases, fashioning a local response to the arming of
public protests will be complicated by limits on local governmental
autonomy.
23
Still, even in the many states where open carry is protected,
officials have options.
Unfortunately, officials have little guidance with which to navigate a
course of action with regard to the arming of public protests. No reported
judicial decisions have specifically addressed the intersection between First
Amendment and Second Amendment rights at public protests. Only a few
scholars have addressed the matter, and they have either proposed broad one-
size solutions or narrow one-off proposals.
24
This Article offers the first comprehensive assessment of the alternatives
available to state and local officials to respond to armed protests. One of the
Article’s primary goals is to assist lawmakers, courts, and law enforcement
officials in working through the constitutional implications of their various
options. The Article does not address whether there is, or ought to be, a
constitutional right to keep and bear arms in public places.
25
Rather, it takes
the law as it currently stands, with nearly all states allowing some form of open
carry and most allowing this practice at public protests. A central question is
whether officials can regulate open carry at public protests in ways that satisfy
both First Amendment and Second Amendment standards.
The arming of public protests also raises some more general concerns.
One issue is whether we can actually reconcile or harmonize expression and
22. See infra Part IV (discussing state and local laws concerning open carry).
23. For example, a locality may be banned from imposing restrictions on open carry owing
to preemptive and controlling state laws. Thus, authorities in Charlottesville, Virginia, are not
able to impose restrictions on open carry owing to Virginia’s permissive open carry laws. See Va.
Code Ann. § 18.2-287.4 (2012 & Supp. 2018). Many states are governed by the so-called “Dillon
rule,” which places limits on local governmental authority where the state legislature has
addressed an issue like right to carry. See Paul Diller, Intrastate Preemption, 87 B.U.
L. REV. 1113,
1122–23 (2007). For a discussion of how this rule affected Charlottesville’s response to the Unite
the Right rally in that city, see generally Richard C. Schragger, When White Supremacists Invade a
City, 104 V
A. L. REV. ONLINE 58 (2018).
24. See DeBoer, supra note 1, at 341–42 (proposing a law banning open carry of firearms at
public protests); David M. Shapiro, Guns, Speech, Charlottesville: The Semiotics of Semiautomatics, 106
G
EO. L.J. ONLINE 1 (2017) (proposing “open-carry zones” as a means of regulating open carry at
public protests).
25. The right to concealed public carry, which the Supreme Court has strongly suggested may
not be covered by the Second Amendment and which does not raise the core expressive concerns
raised by open carry of firearms at public protests, is not addressed in detail in this Article. See
District of Columbia v. Heller, 554 U.S. 570, 626 (“[T]he majority of the 19th-century courts to
consider the question held that prohibitions on carrying concealed weapons were lawful under
the Second Amendment or state analogues.”); see also Peterson v. Martinez, 707 F.3d 1197, 1201
(10th Cir. 2013) (upholding ban on concealed carry of handguns).
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228 IOWA LAW REVIEW [Vol. 104:223
firearms at public protests, assuming both rights are likely to be exercised
together. That depends, to a large extent, on the options available to state and
local authorities. From an even broader perspective, the Article considers the
likely future of the public Second Amendment—the recognition and exercise
of public open carry rights. It does so by using the long experience we have
with our public First Amendment in order to highlight the factors and
influences that are likely to shape the public Second Amendment.
Part II summarizes the scope and exercise of First Amendment and
Second Amendment rights in public places. There is robust and well-
developed First Amendment jurisprudence concerning rights relating to
public protests and public expression more generally.
26
The Supreme Court
recognized an individual right to bear arms only a decade ago.
27
As noted, it
has not yet addressed the scope of Second Amendment rights outside the
home. First Amendment doctrines and justifications relating to public
expression are also far more developed than their Second Amendment
counterparts,
28
which are still under construction. In sum, relative to the
public Second Amendment, the public First Amendment is well-defined and
deeply theorized. Part II closes by introducing, but not resolving, the
compatibility issue—i.e., whether we can have both expression and firearms
at public protests. Compatibility will ultimately depend on whether First
Amendment and Second Amendment rights can be reconciled in this and
other public contexts. This in turn depends on the regulatory options
available to officials and broader concerns about the exercise and policing of
open carry at public protests. These issues will be addressed in the remaining
parts of the Article.
Part III examines the intersection between expression and open carry
from the perspective of First Amendment rights and interests. It first considers
whether there is a First Amendment right to carry firearms at public protests.
Recognition of such a right could spell trouble for state bans on open carry. I
conclude that in very narrow circumstances, the act of carrying a firearm, as
well as the act of assembling with others for that purpose, might be an act of
expression protected by the First Amendment.
29
However, even assuming this
is the case, the First Amendment provides a relatively thin form of protection
for open carry in public places. Unlawful communications conveyed with
firearms—threats and intimidation, for example—are not covered by the Free
26. See generally TIMOTHY ZICK, SPEECH OUT OF DOORS: PRESERVING FIRST AMENDMENT
LIBERTIES IN PUBLIC PLACES (2009) (discussing and critiquing First Amendment doctrines
governing public expression).
27. See Heller, 554 U.S. at 635 (recognizing a right to keep and bear arms in the home for
self-defense).
28. See generally Z
ICK, supra note 26 (comparing the development of the First and Second
Amendments).
29. See infra Sections III.A & III.D (discussing the right to bear firearms in association with
the Freedom of Expression and the Freedom of Assembly).
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Speech Clause.
30
Further, even if open carry is expressive, content-neutral
permit requirements and time, place, and manner regulations can restrict it
in certain respects. Ultimately, the First Amendment may protect only the
right to carry an unloaded firearm. Thus, proponents of open carry looking to
the First Amendment for protection are likely to come away mostly
disappointed. Part III also examines whether the First Amendment might be
relied upon by other protest participants as a basis for limiting open carry
rights. This claim would largely be based on the argument that the presence
of firearms “chills” the expressive activities of protest participants.
31
However,
the short answer to this argument is that this sort of First Amendment harm
is not generally cognizable—even when inflicted by government officials.
32
It
would not provide a basis for limiting open carry by private individuals.
Part IV next considers, primarily from the perspective of the Second
Amendment and state laws granting open carry rights, a menu of options for
regulating the arming of public protests. Authorities have six primary
options: (1) enforce existing criminal laws relating to firearms; (2) ban the
presence of unauthorized private militias at public protests; (3) enforce
longstanding state law prohibitions on “going armed to the terror,” which
generally treat public carry as an act of public intimidation; (4) impose place
and time/event restrictions on open carry; (5) restrict the manner of open
carry; and (6) limit the types of “arms” that can be openly carried at protests.
Part IV concludes that many, although not all, of these regulations would
satisfy current Second Amendment standards. The options provide a basic
framework for thinking about future state laws regulating armed protests, as
well as current measures that can be taken—even in states that allow open
carry—to limit the arming of public protests. These measures may help to
reconcile expression and open carry at public protests, even if they will not
eliminate all tensions between them.
Part V examines some broader lessons—in particular for the public
exercise of Second Amendment rights, which are highlighted by the
phenomenon of armed protests. Although expression and firearms obviously
raise distinctive concerns, our long history with the public dimension of First
Amendment rights suggests a possible path forward with regard to the public
exercise of Second Amendment rights. Much like firearms today, freedom of
speech and assembly were once considered threats to public order and
safety.
33
The transformation of public expression from presumptive threat to
preferred right was the product of decades of experimentation with
30. See infra Section III.B.
31. See, e.g., Miller, supra note 17, at 1309–10 (discussing chilling effect of firearms at
public protests).
32. See Laird v. Tatum, 408 U.S. 1, 13–16 (1972) (holding that subjective chill arising from
alleged governmental surveillance of protest activities is not a cognizable injury).
33. See Timothy Zick, Managing Dissent, 95 W
ASH. U. L. REV. 1423, 1433–37 (2018) (discussing
early free speech and assembly cases treating even political speech as a “clear and present danger”).
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230 IOWA LAW REVIEW [Vol. 104:223
regulations, doctrines, and theories. The public Second Amendment has a
robust head start, particularly in terms of legislative support. However, it has
yet to be tested, shaped, and justified in the same manner as our public First
Amendment. Like the public First Amendment, the future of the public
Second Amendment will not depend only or perhaps even primarily on state
laws and court decisions. It will also depend on how the public right to keep
and bear arms is exercised, policed, balanced against other concerns, and
justified—including at public protests—in the years to come. Only once these
things occur will we know for certain whether a public Second Amendment is
compatible with a pre-existing public First Amendment.
II. T
HE PUBLIC FIRST AND SECOND AMENDMENTS
With regard to both the First Amendment and Second Amendment, the
spheres in which these rights are exercised can be divided into private and
public. Freedom of expression and the right to keep and bear arms can both
be exercised within the home and outside it.
34
This Article focuses on the
public exercise of First Amendment and Second Amendment rights. It begins
with a summary of the current public First Amendment and public Second
Amendment. It then introduces, but does not resolve, a central concern
relating to the intersection between public expression and open carry—that
the two are inherently incompatible.
A. P
UBLIC SPEECH AND ASSEMBLY
The definition and scope of public expressive rights are by now relatively
clear. The courts have extensive experience addressing the public protection
of freedom of speech, assembly, petition, and press rights, pursuant to a
jurisprudence that has been developed over the course of many decades.
35
Public protests take many different forms. Speakers engage in everything
from large-scale assemblies and demonstrations, to smaller-scale expressive
gatherings, to face-to-face pamphleteering. Public speakers use the written
and spoken word. They also communicate through music, art, and
performance.
36
Symbolic or expressive acts have long been part of the
American public expressive tradition.
37
Our First Amendment has been
interpreted to cover conduct with an expressive element. Thus, when the
speaker intends to convey a particularized message, and there is a great
34. See generally Miller, supra note 17 (discussing private and public aspects of freedom of
speech and the right to keep and bear arms).
35. See generally Z
ICK, supra note 26 (discussing the development of First Amendment doctrines).
36. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 803 (1989) (upholding sound
restrictions at a park bandshell).
37. See generally Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment,
97 G
EO. L.J. 1057 (2009) (discussing early forms of symbolic conduct).
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likelihood that the audience will understand that message, the Free Speech
Clause applies.
38
Symbolic conduct also takes a wide variety of forms—including parading,
flag burning, overnight camping, die-ins, and even stages of nudity. The
government can enforce content-neutral regulations of symbolic conduct, if
those regulations are narrowly tailored to serve significant public interests.
39
However, as is the case with other forms of expression, the government cannot
generally target the expressive element of symbolic conduct unless it has a
compelling interest in doing so and its regulation is necessary to serve that
interest.
40
Under current doctrine, speakers have relatively robust access rights, for
purposes of the exercise of First Amendment rights, to “traditional” public
forums such as public streets, parks, and sidewalks.
41
In those places which
the Court has described as open to expressive activities “time out of mind,”
government is generally prohibited from denying access or regulating speech
based on its subject matter or viewpoint.
42
However, the government can
impose content-neutral restrictions on the time, place, and manner of
expression so long as those restrictions suppress no more speech than is
necessary to serve its significant interests.
43
Those interests range from public
order and safety, to privacy and repose, to aesthetics.
44
The same basic rules
apply in “designated” public forums, which are properties the government has
intentionally opened to expressive activities.
45
In other public properties
—i.e., those that are neither traditional public forums nor designated public
forums—government can impose reasonable restrictions on speech so long
as they are neutral with regard to viewpoint.
46
38. See Texas v. Johnson, 491 U.S. 397, 417–18 (1989) (concluding that public burning of
U.S. flag at a political protest was expressive); Spence v. Washington, 418 U.S. 405, 410 (1974)
(holding that conduct is expressive if the speaker intends to convey a message and an audience
is likely to understand it).
39. See United States v. O’Brien, 391 U.S. 367, 376–77 (1968) (announcing an
intermediate scrutiny standard for laws that incidentally burden speech and expressive conduct).
40. See Johnson, 491 U.S. at 411–12 (invalidating state law criminalizing flag burning).
41. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)
(summarizing modern public forum doctrine).
42. Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939); see Perry,
460 U.S. at 45 (describing places “which by long tradition or by government fiat have been
devoted to assembly and debate”).
43. Perry, 460 U.S. at 60.
44. See Frisby v. Schultz, 487 U.S. 474, 486 (1988) (upholding restriction on “targeted
picketing” outside residence of abortion provider); Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 289 (1984) (upholding prohibition on overnight camping in national parks owing
to concerns about damage to park lands); Cox v. Louisiana, 379 U.S. 536, 545 (1965) (invalidating
conviction of leader of civil rights group seeking to protest racial segregation).
45. See Perry, 460 U.S. at 45–46.
46. Id.
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Although protection for public expressive rights is robust, it is not
without limits. There are Free Speech Clause coverage limits, all of which
apply to public expression. Speakers cannot incite others to violence or
unlawful acts where violence or unlawful activity is imminent and likely to
occur.
47
Nor can they communicate threats, distribute obscene materials, or
utter words that are likely to provoke an imminent brawl.
48
However, these
are relatively narrow coverage exceptions. Thus, the First Amendment
generally protects communications that are crude, offensive, and
derogatory.
49
Public protests, demonstrations, and rallies often include
boisterous, profane, and distasteful communications. Assemblies of protesters
and counter-protesters may shout at one another, hurl insults, and engage in
contentious debates.
Governments can of course regulate unlawful and violent assemblies of
individuals. Moreover, the First Amendment standards and principles
applicable to public expression grant government wide latitude to displace,
limit, and burden public expression and assembly.
50
As managers of public
properties, including public parks and streets, governments can impose limits
on public expression that render its actual exercise quite difficult.
Thus, as mentioned, officials can impose limits on the time, place, and
manner of expression and expressive events.
51
Under this authority,
governments have enacted detailed permit schemes and imposed limits on
the duration and manner of protests. This authority has been used to restrict
speakers to “free speech zones”—designated places in which speech and
assembly are permitted.
52
Notwithstanding their significant impact on public
speech and assembly, so long as they satisfy the relatively lenient time, place,
and manner standard, free speech zones and similar restrictions are often
permissible.
In general, officials can pursue a variety of content-neutral interests in
ways that make it very difficult for speakers to distribute information, convey
ideas, assembles in numbers, and reach intended audiences. This authority is
considered necessary to impose basic rules of order on public events such as
47. See Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (invalidating application of Ohio
criminal syndicalism law where speech was not intended or likely to incite imminent lawless action).
48. See Miller v. California, 413 U.S. 15, 23 (1973) (holding that obscenity is not covered by
the Free Speech Clause); Watts v. United States, 394 U.S. 705, 707–08 (1969) (holding that “true
threats” are not covered by the Free Speech Clause); Chaplinsky v. New Hampshire, 315 U.S. 568,
573 (1942) (announcing that “fighting words” are not covered under the First Amendment).
49. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 391–96 (1992) (invalidating St. Paul
ordinance prohibiting certain fighting words); Cohen v. California, 403 U.S. 15, 16, 25 (1971)
(invalidating conviction for disturbing the peace based on jacket bearing the words “Fuck the Draft”).
50. See generally Z
ICK, supra note 26 (discussing First Amendment doctrines relating to place
or location).
51. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–47 (1988).
52. See generally Timothy Zick, Speech and Spatial Tactics, 84 T
EX. L. REV. 581 (2006) (discussing
use of free speech zones and other spatial restrictions on public expression).
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protests and demonstrations. However, it can also be used to impose
managerial control over dissenting speakers and groups that rely on a degree
of disruption to communicate their messages.
The reasons for recognizing these robust First Amendment protections
to speech, assembly, press, and petition rights in public places are also well-
understood. All of the principal justifications for protecting expressive
rights—advancing self-government, facilitating the search for truth, and
respecting individual autonomy
53
—apply to communications at public
protests and demonstrations. In sum, public protests, demonstrations,
symbolic acts, and other public expression are a critical part of the American
expressive tradition.
B. P
UBLIC KEEPING AND BEARING OF ARMS
Compared to established public First Amendment tradition, the
constitutional framework governing the public exercise of Second
Amendment rights is in its infancy. The Supreme Court recognized an
individual right to keep and bear arms in 2008, in District of Columbia v.
Heller.
54
Heller recognized an individual right to bear arms in the home, for
self-defense.
The Court emphasized that “[l]ike most rights, the right secured by the
Second Amendment is not unlimited.”
55
Thus, it does not protect “a right to
keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.”
56
In a passage that has received a lot of attention, the
Court discussed some longstanding limits:
Although we do not undertake an exhaustive historical analysis today
of the full scope of the Second Amendment, nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding
the carrying of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.
57
Aside from the reference to “sensitive places” such as schools and
government buildings in the above passage, the Court has not yet addressed
the scope of Second Amendment rights in public places. However, there are
53. See Abrams v. United States, 250 U.S. 616, 629 (1919) (Holmes, J., dissenting) (using
marketplace of ideas metaphor to explain freedom of speech). See generally C.
EDWIN BAKER,
HUMAN LIBERTY AND FREEDOM OF SPEECH (1989) (discussing autonomy values associated with
free speech); A
LEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT
(2004) (discussing the importance of free speech to self-government).
54. District of Columbia v. Heller, 554 U.S. 570, 622 (2008).
55. Id. at 626.
56. Id.
57. Id. at 626–27 (emphasis added).
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234 IOWA LAW REVIEW [Vol. 104:223
some indications that it may recognize at least a limited right to keep and bear
arms openly in public. Justice Scalia’s opinion for the Court in Heller
concluded that the Second Amendment “guarantee[s] the individual right to
possess and carry weapons in case of confrontation.”
58
The Court also
observed that “the inherent right of self-defense” rests at the core of the
Second Amendment.
59
Although the Court noted that the need for self-
defense was “most acute” in the home, it did not expressly limit the scope of
the Second Amendment to that place.
60
The scope of the term “Arms” in the Second Amendment is also the
subject of ongoing judicial and academic debate. Heller states that the term
covers “Arms” that were “‘in common use at the time’ for lawful purposes like
self-defense.”
61
Whether that includes various types of assault rifles, or other
weapons from knives to nunchucks, will be worked out over time. Under the
Court’s standard, it at least appears to be the case that individuals cannot carry
hand grenades, sawed-off shotguns, or weapons of war to a public protest.
62
However, which weapons are covered by the Second Amendment, and what
standard of judicial review is to be used to adjudicate limits on specific “Arms,”
remain open questions.
One possibility for resolving at least some questions of public scope, as
suggested above, is to look generally to the First Amendment for guidance.
Heller relied heavily on analogies between the First Amendment and Second
Amendment. The Court invoked the First Amendment in three respects, each
of which might have some bearing on defining the public dimension of
Second Amendment rights.
First, the Court sought to burnish the Second Amendment’s historical
pedigree by comparing it to the First Amendment’s. Both provisions, the
Court asserted, codified pre-existing rights and both were the product of a
long dormancy followed by renewed judicial engagement.
63
This comparison
served to place the Second Amendment in the same orbit as the more
established First Amendment, in terms of its historical roots and road to
rediscovery.
Second, the Court invoked the Free Speech Clause analogy in addressing
the Second Amendment’s scope. For example, it noted that just as the Free
58. Id. at 592.
59. Id. at 628.
60. Id.; see also McDonald v. City of Chi., 561 U.S. 742, 767 (explaining that “individual self-
defense is ‘the central component’ of the Second Amendment right” without any indication that the
right is limited to the home).
61. Heller, 554 U.S. at 624 (citation omitted).
62. See id. at 626–27; see also id. at 625 (“[United States v. Miller said] only that the Second
Amendment does not protect those weapons not typically possessed by law-abiding citizens for
lawful purposes, such as short-barreled shotguns. That accords with the historical understanding
of the scope of the right.”).
63. Id. at 592, 625–26.
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Speech Clause’s protection extends to modern forms of communication
(such as speech on the Internet), so too must the Second Amendment’s scope
extend beyond the types of arms available at the founding.
64
At the same time,
also concerning the matter of scope, the Court observed that the Second
Amendment, like the First Amendment, does not protect all exercises of the
right in question.
65
Thus, just as there are some limits on free speech
coverage, there must also be limits on the coverage and exercise of the right
to bear arms.
Finally, in terms of methodology, the Court rejected calls for an interest-
balancing approach to Second Amendment rights—i.e., a weighing of the
individual’s right to keep and bear arms against the state’s interests in
regulating such activities. Once again, the majority opinion invoked the Free
Speech Clause example: “The First Amendment contains the freedom-of-
speech guarantee that the people ratified, which included exceptions for
obscenity, libel, and disclosure of state secrets, but not for the expression of
extremely unpopular and wrong-headed views. The Second Amendment is no
different.”
66
In addition, the Court expressly rejected any form of “rationality”
review for Second Amendment regulations, arguing that this form of low-level
review has not been applied in the free speech context.
67
These observations
may have some bearing on how courts assess future restrictions on the public
exercise of Second Amendment rights.
Lower courts have had roughly a decade to examine the scope of public
rights to keep and bear arms. Some have concluded that the Second
Amendment applies in public places and have invalidated outright bans on
public carry.
68
Other courts have held that the Second Amendment does not
include a right to carry firearms in public.
69
Some have noted that the
question remains open.
70
The Supreme Court has declined several
64. Id. at 582.
65. Id. at 595.
66. Id. at 635.
67. Id. at 628 n.27.
68. See, e.g., Peruta v. Cty. of San Diego, 742 F.3d 1144, 1178–79 (9th Cir. 2014); Moore v.
Madigan, 702 F.3d 933, 937 (7th Cir. 2012) (concluding that the right to self-defense extends
beyond the home).
69. See, e.g., In re Pantano, 60 A.3d 507, 514 (N.J. Super Ct. App. Div. 2013); Richards v.
Cty. of Yolo, 821 F. Supp. 2d 1169, 1174–75 (E.D. Cal. 2011), rev’d sub nom. Richards v. Prieto,
560 F. App’x 681 (9th Cir. 2014), rev’d en banc sub nom., Peruta v. Cty. of San Diego, 824 F.3d
919 (9th Cir. 2016). See generally Michael C. Dorf, Does Heller Protect a Right to Carry Guns Outside
the Home?, 59 S
YRACUSE L. REV. 225 (2008) (arguing that Heller supports adoption of a
private/public distinction concerning Second Amendment rights).
70. See, e.g., Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013) (“It remains unsettled whether
the individual right to bear arms for the purpose of self-defense extends beyond the home.”);
Kachalsky v. Cty. of Westchester, 701 F.3d 81, 88 (2d Cir. 2012) (“Heller provides no categorical
answer to this case. And in many ways, it raises more questions than it answers.”).
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opportunities to address whether the Second Amendment protects some
form of public carry.
71
The federal appeals courts have started to develop standards of review
regarding regulations that burden open and other forms of public carry.
Taking their primary cues from Heller, some courts have expressly relied on
the First Amendment’s general framework for speech regulations when
reviewing firearms regulations.
72
One court concluded that “a lesser showing
is necessary with respect to laws that burden the right to keep and bear arms
outside the home.”
73
Under the borrowed free speech framework, regulations
of what might be considered non-core exercises of the Second Amendment
—i.e., those that do not affect the right to keep and bear arms in the home
for self-defense—are subject to an “intermediate scrutiny” standard under
which governments must demonstrate a reasonable fit between the law and
some important governmental objective.
74
As some commentators had
predicted, the logical progression and likely consequence of borrowing a First
Amendment framework to define public and other Second Amendment
rights is a form of judicial interest balancing.
75
In stark contrast to our understanding of First Amendment expressive
rights, the scope of the right to exercise Second Amendment rights in public
is far less developed and thus far less certain. Whether there is a constitutional
right to exercise Second Amendment rights in public places is itself unclear.
So too is the precise scope of the conduct the Second Amendment protects
in public settings. The doctrines, principles, and theories relating to the
public exercise of Second Amendment rights are the subject of current debate
in and beyond the courts.
76
In contrast to First Amendment rights, there is
much we do not yet know about when, where, and how Second Amendment
rights can be exercised in public venues or at public events.
C. T
HE COMPATIBILITY QUESTION
The arming of public protests has brought the public dimensions of the
First Amendment and Second Amendment together. Expression and open
71. See Liptak, supra note 8 (observing that the Supreme Court has denied certiorari in
several public carry cases).
72. See, e.g., United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); United States v.
Chester, 628 F.3d 673, 682 (4th Cir. 2010).
73. United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011).
74. Jackson v. City & Cty. of S.F., 746 F.3d 953, 961 (9th Cir. 2014).
75. See Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis,
84 N.Y.U.
L. REV. 375, 381–83 (2009) (explaining the distinction between categoricalism and
balancing approaches and how this might affect interpretation of the Second Amendment); Mark
Tushnet, Heller and the Perils of Compromise, 13 L
EWIS & CLARK L. REV. 419, 421–22 (2009)
(explaining that some balancing in Second Amendment doctrine is inevitable).
76. Joseph Blocher & Darrell A.H. Miller, Lethality, Public Carry, and Adequate Alternatives,
53 H
ARV. J. LEGIS. 279, 293–300 (2016) (discussing a range of possible Second Amendment
justifications, including self-defense, autonomy, and protection against governmental tyranny).
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2018] ARMING PUBLIC PROTESTS 237
carry are now exercised in the same public places. As individuals have begun
to more regularly exercise open carry and other Second Amendment rights
in the same places where they protest and assemble, some have raised the
question whether First Amendment and Second Amendment rights are
inherently incompatible at public protests, demonstrations, and rallies.
Commentators, including some constitutional scholars, argue that in the
case of public protests, there is an inherent conflict between the exercise of
First Amendment and Second Amendment rights. Professor Darrell Miller
argues that the right to keep and bear arms, like the right to view obscenity,
ought to be interpreted as “home-bound.”
77
According to Miller, part of the
justification for treating Second Amendment rights as “home-bound” is that
in public contexts, the government has “a monopoly on legitimate violence.”
78
Further, Miller argues, the public display of firearms “must be tempered by
other constitutional values, including the preservation and maintenance of
the social compact and democratic norms.”
79
Directly addressing the compatibility concern, Miller argues that “the
presence of a gun in public has the effect of chilling or distorting the essential
channels of a democracy—public deliberation and interchange.”
80
He
writes: “Valueless opinions enjoy an inflated currency if accompanied by
threats of violence. Even if everyone is equally armed, everyone is deterred
from free-flowing democratic deliberation if each person risks violence from
a particularly sensitive fellow citizen who might take offense.”
81
A “home-
bound” interpretation of the Second Amendment is justified, Miller argues,
in part because “[a] right to freely brandish firearms frustrates one of the very
purposes of a constitution, which is ‘to make politics possible.’”
82
Other scholars have similarly argued that the First Amendment and
Second Amendment are democratically incompatible in the context of public
protests. Focusing specifically on the claim that public carry rights are
necessary to resist government, Professor Greg Magarian claims that “[e]ven
keeping arms to enable insurrection would undermine debate by fostering a
climate of mistrust and fear.”
83
Magarian puts it this way: “[I]nsurrection
short-circuits political debate.”
84
According to this view, in our democracy the
First Amendment provides the chosen and legitimate vehicle for political
revolution.
85
Allowing individuals to openly carry firearms at public protests
77. See generally Miller, supra note 17 (arguing for a “home-bound” Second Amendment).
78. Id. at 1308.
79. Id.
80. Id. at 1309–10.
81. Id. at 1310 (footnote omitted).
82. Id. (quoting Jack M. Balkin, Constitutional Hardball and Constitutional Crises, 26 Q
UINNIPIAC
L. REV. 579, 592 (2008)).
83. Magarian, supra note 17, at 95.
84. Id.
85. See id. at 95–96.
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is repugnant to the premise of peaceful self-government and democratic
change that the First Amendment supports.
The incompatibility argument thus rests on two basic premises. The first
is that the mere presence of firearms at public protests is a form of
intimidation that chills public debate by threatening violent suppression of
protest. The second premise is that openly carrying a firearm conflicts with
the democratic values served by freedoms of speech, assembly, and petition at
public protests.
86
In essence, the claim is that allowing open carry at public
protests elevates armed conflict over peaceful democratic discourse. This
substitutes the brandishing of arms for counter-speech, which is the First
Amendment’s preferred response to protest and dissent.
87
For Miller and
Magarian, in the particular context of public protests, Second Amendment
rights are outweighed by First Amendment rights and concerns.
88
There is a certain common sense and rational appeal to the notion that
the presence of armed protesters or counter-protesters will indeed chill the
exercise of First Amendment speech and assembly rights. At the least, the
presence of firearms adds an element of potential danger to what are often
rowdy and contentious public events. Events like the Charlottesville “‘Unite
the Right’ Rally” suggest that the premises of the incompatibility position are
not without some merit.
By the same token, it may not be fair to test the incompatibility argument
with reference to the most combustible and violent protests. When one thinks
about the range of protest events that occur across the U.S., whether
expression and firearms are inherently incompatible with one another
becomes a closer question. At the very least, the argument that we cannot have
both First Amendment and Second Amendment rights at protests is subject
to rebuttal.
In many places in the U.S., public protests have actually been armed for
some time.
89
In some open carry jurisdictions, the mere presence of firearms
has not suppressed public protests.
90
Of course, that does not mean public
expression has never been chilled at all by the presence of firearms. To
understand the actual effect of open carry on public expression, we would
86. See id. at 58.
87. See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) (“[T]he fitting
remedy for evil counsels is good ones.”), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (2012).
88. This sort of rights balancing is not uncommon. See, e.g., Bartnicki v. Vopper, 532 U.S.
514, 534 (2001) (holding that privacy interest in the context of private conversation must give
way to public interest in dissemination of information of public concern); Burson v. Freeman,
504 U.S. 191, 211 (1992) (plurality opinion) (balancing free speech and voting rights and
upholding limits on political campaign speech near polling places).
89. Eugene Volokh, The First and Second Amendments, 109 C
OLUM. L. REV. SIDEBAR 97,
102–03 (2009).
90. See id. (claiming that New Hampshire, Vermont, and Washington, which have long imposed
few restrictions on carrying guns, enjoy the same level of robust political discourse as more
restrictive states like Hawaii, Maryland, and New York).
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2018] ARMING PUBLIC PROTESTS 239
need to empirically examine the psychological and physical impacts of public
carry on public protest participants and participation.
At this point, we do not have that kind of data. We have only anecdotal
observations and accounts. I can count my own among them. In September
2017, I attended a permitted rally near the Robert E. Lee monument in
Richmond, Virginia. A white nationalist group planned the rally to garner
support for retaining the statue, which some had proposed be removed. As it
happened, counter-protesters far outnumbered the dozen or so white
nationalists who attended. Some in the crowd were openly carrying firearms.
Here is what I witnessed:
The conversation depicted went on for at least thirty minutes, and was at all
times peaceful but spirited. It drew a crowd of curious onlookers.
Recall that the question presented is one of inherent incompatibility. The
fact that open carry creates some tensions or concerns that may chill or inhibit
public expression does not itself demonstrate inherent incompatibility. My
single example does not demonstrate the absolute compatibility of free
speech and firearms. However, it defeats the claim that these two things can
never co-exist at public protests.
Some scholars have also pushed back against the claim that the mere
presence of firearms chills public expression. Indeed, Professor Eugene
Volokh argues that public carry might actually facilitate the exercise of First
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Amendment rights at public protests.
91
Professor Volokh argues that the right
to keep and bear arms at public protests might “support public interchange,
by assuring minority speakers that they can protect themselves against violent
suppression.”
92
Rather than view open carry as fatally undermining public
discourse, Volokh suggests that it may level the playing field and encourage
the communication of dissident and minority viewpoints.
93
Some of the
armed militia groups that participated in the Charlottesville event sounded a
similar note, claiming that they were present in order to ensure that all
participants’ First Amendment rights were respected.
94
As noted earlier, most state legislatures and many courts have implicitly
concluded that First Amendment and Second Amendment rights are not
inherently in conflict with one another at public events.
95
Laws protecting
open carry, including in public places, are politically popular. They suggest a
political determination, indeed one bordering on broad consensus, that
expression and firearms are not wholly incompatible at public events like
protests. As we will see, not all states have adopted this view.
96
And indeed,
some states that protect open carry impose limits on it that are clearly aimed
at reducing the tensions and potential harms that might occur when protests
become armed. But these are best interpreted as efforts to reconcile or
harmonize expression and open carry at protests, rather than determinations
that Second Amendment rights are outweighed by First Amendment rights.
The Supreme Court seems likely to weigh in on the compatibility
question, at least indirectly, when it finally addresses the Second
Amendment’s public dimension. Depending on what it concludes, the Court
will have some impact on the future of the public Second Amendment. In the
meantime, as will be discussed in Parts III and IV, jurisdictions will seek to
reduce the tensions that occur when expression and firearms occupy the same
public venues. Moreover, as I explain in Part V, several additional factors will
likely affect the compatibility debate as we move forward. These include how
open carry is exercised, regulated, and policed. Ultimately, how the public,
officials, and courts view the compatibility question may depend on how many
“Charlottesvilles,” or worse, we experience.
91. Id. at 102.
92. Id. (emphasis omitted).
93. Id.
94. See Paul Duggan, Militiamen Came to Charlottesville as Neutral First Amendment Protectors,
Commander Says, W
ASH. POST (Aug. 13, 2017), https://www.washingtonpost.com/local/trafficand
commuting/militiamen-came-to-charlottesville-as-neutral-first-amendment-protectors-commander-
says/2017/08/13/d3928794-8055-11e7-ab27-1a21a8e006ab_story.html.
95. See, e.g., Moore v. Madigan, 702 F.3d 933, 937 (7th Cir. 2012) (concluding that the
Second Amendment right to self-defense extends beyond the home).
96. See infra Part IV (discussing various state and local open carry regulations).
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III. ARMING THE FIRST AMENDMENT
Individuals are exercising First Amendment and Second Amendment
rights at public protests. Assuming for the moment that these rights are not
inherently incompatible, what rights does the First Amendment confer on
arms-carriers at public protests? What restrictions apply to armed expression
and assemblies that openly carry firearms for expressive purposes? Finally, can
the First Amendment be invoked to limit open carry rights at public protests,
owing to the potential chilling effect of firearms on political and other
expression?
A. A
FIRST AMENDMENT RIGHT TO OPEN CARRY AT PROTESTS?
One aspect of the relationship between First Amendment and Second
Amendment rights at public protests relates the possible expressiveness of
open carry. If open carry is expressive, then the First Amendment may limit
the extent to which authorities can restrict or ban the activity at public
protests. Is there a First Amendment right to carry firearms at a public protest?
If so, what is the scope of this right?
In some circumstances, the keeping and bearing of arms might be
sufficiently expressive to constitute covered “speech” under the First
Amendment’s Free Speech Clause.
97
Symbolic acts—i.e., those intended to
convey messages that audiences, in particular contexts, are likely to
understand—are covered by the Free Speech Clause.
98
For example, the
Supreme Court has held that burning a flag at a political protest qualifies as
sufficiently expressive to warrant Free Speech Clause coverage.
99
With respect
to symbolic acts, context matters—particularly in terms of the requirement
that an audience be likely to comprehend what a person seeks to
communicate through acts or conduct.
The easiest case in terms of coverage involves individuals openly carrying
firearms at a public protest or rally advocating in favor of Second Amendment open
carry rights.
100
Assume that the jurisdiction currently prohibits open carry and
allows only the concealed carry of firearms in public places. In the narrow
context of a protest that is about or concerning Second Amendment rights,
open carry may be considered part of the expressive element of the
97. U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”).
98. See Spence v. Washington, 418 U.S. 405, 409–10 (1974) (holding that conduct can be
expressive where a speaker intends to convey a message and an audience is likely to understand
it); United States v. O’Brien, 391 U.S. 367, 376 (1968) (setting forth standard of review for
content-neutral regulations of symbolic speech).
99. See Texas v. Johnson, 491 U.S. 397, 400, 404–05, 420 (1989) (invalidating state law
conviction for “desecrati[ng]” the U.S. flag).
100. See Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003) (observing that “a gun
supporter waving a gun at an anti-gun control rally” may be engaged in expressive conduct);
Burgess v. Wallingford, No. 11-cv-1129, 2013 WL 4494481, at *9 (D. Conn. May 15, 2013) (“Gun
possession may, in some contexts, . . . invoke First Amendment analysis.”).
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demonstration or protest.
101
It would constitute what I have described
elsewhere as a form of “rights speech”—a communication about or
concerning the recognition, scope, or exercise of a constitutional right.
102
A protester who openly and publicly bore arms at such a rally would likely
have a valid claim that restricting the open carry of firearms at least implicates
the Free Speech Clause. Assuming the open carry restriction is not based on
the content of what open carry seeks to communicate but instead on content-
neutral safety or other reasons, the free speech right to carry would be
reviewed under a standard that requires government to demonstrate
important regulatory interests and that its restriction is narrowly tailored to
those interests.
103
The government would likely argue that disarming individuals during a
public protest—in particular prohibiting them from openly carrying
firearms—is narrowly tailored to further an important interest in public safety
and crime prevention. It might also argue that disarming protesters in this
manner will facilitate the effective exercise of free speech and assembly rights.
In sum, the government would argue that the presence of firearms at public
protests creates an inherent risk of violence, intimidation, or both.
Some commentators treat the invocation of such interests as sufficient on
their face to justify any restriction on open carry under the Free Speech
Clause.
104
To the contrary, I think it is a close question whether an armed
protester might prevail under the governing standard.
105
While it is true that courts generally defer to stated governmental
interests in public order, safety, and the like, courts sometimes require more
specific showings to uphold limits on expression.
106
For example, the Ninth
Circuit invalidated a city ordinance banning the carrying of all poles and sticks
during public protests.
107
The court concluded that the city bore the burden
of demonstrating that its interests were real—i.e., that there was some tangible
evidence that the ban was necessary to serve its interests in public safety.
108
101. See DeBoer, supra note 1, at 346–47 (concluding that open carry at a rally for Second
Amendment rights would be expressive); Shapiro, supra note 24, at 2 (arguing that open carry at
the Charlottesville rally was expressive).
102. See generally Timothy Zick, Rights Speech, 48 U.C.
DAVIS L. REV. 1 (2014) (identifying a
category of political speech that relates to the recognition, scope, or exercise of constitutional rights).
103. O’Brien, 391 U.S. at 376–77.
104. E.g., DeBoer, supra note 1, at 355; Shapiro, supra note 24, at 5.
105. See generally DeBoer, supra note 1 (concluding that safety and crime prevention justifications
are sufficient to merit a ban on open carry at public protests); Shapiro, supra note 24 (same).
106. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2535–36 (2014) (invalidating abortion
clinic buffer zones on the ground that the state had not demonstrated they were narrowly tailored
to serve its interests relating to ensuring access).
107. See Edwards v. City of Coeur d’Alene, 262 F.3d 856, 864–65 (9th Cir. 2001) (concluding
that ban on all sign supports was not narrowly tailored to serve city’s interest in public safety).
108. Id. at 863.
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Further, courts treating a class of armed speakers as presumptively
dangerous are flirting with content discrimination. Add to these concerns the
fact that there is another (at least potential) constitutional right at issue. This
may heighten judicial review of government claims that the mere presence of
firearms is an adequate basis for curtailing free speech. Armed protesters
could plausibly argue that the mere prospect of violence from open carry is too
speculative to be treated as sufficiently “important” to outweigh their
expressive rights in public forums like public streets and parks. They could
rely, again, on the established free speech principle that subjective fear of
violence, without more, is not a valid justification for limiting or prohibiting
speech.
109
As explained earlier, the mere prospect of expressive chill might
not be deemed sufficient to justify an outright ban on open carry at a Second
Amendment protest.
110
Of course, it is possible that a court might view the prospect of violence
as more than merely speculative. Although it has happened only rarely,
firearms have indeed been discharged at some public protests.
111
A locality
might thus be able to make a more concrete showing of danger or harm
—either by proving that there have been public shootings at protests in that
specific locality, or perhaps pointing to similar experiences elsewhere.
112
Notwithstanding the Second Amendment implications, First Amendment
scrutiny of content-neutral time, place, and manner restrictions might just be
flexible enough to permit officials to rely on this sort of evidence. But courts
faithfully applying a narrow tailoring requirement should require more than
abstract invocations of public safety or crime prevention before allowing
officials to restrict expression in public forums.
109. See, e.g., Cohen v. California, 403 U.S. 15, 23 (1971) (“The argument amounts to little
more than the self-defeating proposition that to avoid physical censorship of one who has not sought
to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more
appropriately effectuate that censorship themselves.”); Tinker v. Des Moines Indep. Comm. Sch.
Dist., 393 U.S. 503, 508 (1969) (“But, in our system, undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of expression.”); Terminiello v.
Chicago, 337 U.S. 1, 4 (1949) (“[A] function of free speech under our system of government is to
invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger.”).
110. One commentator has reached the opposite conclusion. See DeBoer, supra note 1,
at 350–57 (arguing that prohibition on open carry during public protests would satisfy Free Speech
Clause standards). The author’s argument is based on the premise that government can justify a
prohibition on open carry at public protests by pointing generally to crime-prevention and safety
interests. Id. For the reasons stated, it is not clear whether these abstract invocations of safety and
crime prevention would be sufficient to justify an open carry ban in the context being considered.
111. See Robles, supra note 5 (reporting on arrest of man who discharged handgun at
Charlottesville rally).
112. Cf. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986) (suggesting that
local officials could rely on evidence of “secondary effects” from adult theaters in defending
regulations of such establishments).
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Whether an open carry restriction is adequately tailored will depend to
some extent on the scope of the restriction. Assuming a court credits the
government’s invocation of important interests, a ban on public carry during
the duration of a public protest could be upheld as necessary to further those
interests. Then again, some courts might balk at this sort of medium ban and
require that the government at least consider a more limited restriction. More
limited regulations might further the government’s interests in safety and
crime-prevention just as effectively. For example, the government could limit
the protest or demonstration route in ways that reduce the potential for
violent interactions. Or it could condition the permit on armed protesters not
having any record of criminal or other violent behavior. Thus, again, it is not
a certainty that the government would be able to defend an outright ban on
the open carry of firearms at a political protest about gun rights or gun
control.
Thus far, I have concluded that in the context of a public protest about
the right to keep and bear arms, claimants might prevail on their claim that
firearms display is a form of covered and protected speech. Outside that
narrow context, however, the prospects for Free Speech Clause coverage dim
rather significantly.
To be sure, gun rights proponents might argue that keeping and bearing
arms at any public protest—indeed, in any public setting—is an expressive act.
They might argue that they intend to communicate a willingness to defend
themselves against private or governmental force. Or they might argue an
intent to communicate the importance of an armed citizenry to defend
against an overreaching government. Finally, they might insist that a firearm,
like a national flag, is “pregnant with expressive content”—a cultural symbol
of rugged individualism, frontier values, and self-defense.
113
The act of marching in a demonstration is itself a form of covered speech,
as are the placards, banners, and songs marchers use to communicate their
message.
114
Further, as the Supreme Court has said with regard to a public
parade, “a narrow, succinctly articulable message is not a condition of
constitutional protection.”
115
So the demonstration itself is clearly a form of
covered speech. However, not everything one does in the protest context is
automatically swept in as expressive. For instance, the act of carrying a stick, a
pole, a rock, a container of mace, or any other weapon at a public protest does
not have any inherently expressive element. These acts seem no more
inherently expressive than other public acts, such as driving a car or recycling
a plastic container. One might be expressing the virtues of driving or
113. Texas v. Johnson, 491 U.S. 397, 405 (1989) (“Pregnant with expressive content, the flag
as readily signifies this Nation as does the combination of letters found in ‘America.’”); DeBoer,
supra note 1, at 343–48 (examining variety of messages open carry might communicate).
114. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995)
(discussing the expressiveness of a parade).
115. Id.
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recycling, but any speech element is decidedly marginal and is in any event
not likely to be understood by an audience.
116
As the Supreme Court has said, conduct does not qualify as “‘speech’
whenever the person engaging in the conduct intends thereby to express an
idea.”
117
It has also said that where some explanatory speech is necessary to
enable the audience to understand the intended message, this “is strong
evidence that the conduct at issue . . . is not so inherently expressive that it
warrants protection.”
118
This principle may apply to most instances of open
carry, which likely require some form of explanation in order to convey a
message that would be understandable to public audiences.
119
Thus, it seems unlikely that courts would conclude that the mere act of
visibly carrying a firearm at any public protest or demonstration constitutes
an expressive act in a great majority of circumstances.
120
Without something
more in the way of context, it is not clear what, if anything, a firearm expresses.
However, even if courts were to consider open carry to be an expressive act in
the specific context I describe, or more generally, it would be subject to
several limitations. As discussed below, one of those limitations might be that
First Amendment rights are adequately preserved by a regulation that allows
for the open carrying of only unloaded firearms.
121
B. U
NCOVERED ARMS SPEECH
Even if there is some expressive right to openly carry firearms at certain
public protests, the First Amendment limits certain arms-facilitated
expression. Thus, there is no First Amendment right to threaten others by
brandishing firearms in a manner that places an individual in fear of
116. See Rumsfeld v. Forum for Acad. & Institutional Rights, 547 U.S. 47, 60 (2006)
(rejecting claim that requiring law schools to send emails and provide other forms of equal access
for military employers violated rights of expressive conduct).
117. United States v. O’Brien, 391 U.S. 367, 376 (1968) (emphasis added).
118. Forum for Acad. & Institutional Rights, 547 U.S. at 66.
119. See Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003) (“Typically a person
possessing a gun has no intent to convey a particular message, nor is any particular message likely
to be understood by those who view it.”); see also Kendall Burchard, Your ‘Little Friend’ Doesn’t Say
‘Hello’: Putting the First Amendment Before the Second in Public Protests, 104 VA. L. REV. ONLINE 30, 44
(2018) (“Guns don’t speak. Although they may command attention and fear, the objects
themselves are not inherently expressive.”); Luke Morgan, Note, Leave Your Guns at Home: The
Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations, 68 D
UKE L.J. 175,
183–99 (2018) (concluding that the act of carrying a weapon is not “speech”); Eric Tirschwell
& Alla Lefkowitz, Prohibiting Guns at Public Demonstrations: Debunking First and Second Amendment
Myths After Charlottesville, 65 UCLA
L. REV. DISCOURSE 172, 188 (2018) (concluding that open
carry is not expressive).
120. See, e.g., Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842, 848 (N.D. Ohio
2014), rev’d on other grounds, 785 F.3d 1128 (6th Cir. 2015) (rejecting argument that defendant,
who was carrying a firearm in a holster when arrested, was engaged in expressive conduct); Baker
v. Schwarb, 40 F. Supp. 3d 881, 895 (E.D. Mich. 2014) (observing that audience did not appear
to understand the message armed defendant was seeking to convey).
121. See infra Section III.C.
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246 IOWA LAW REVIEW [Vol. 104:223
imminent bodily injury or death.
122
Waving a firearm in another’s face, or
otherwise menacing a protest participant with an object of deadly force,
cannot be defended as an exercise of the right to freedom of speech. Even if
there is a Second Amendment right to openly carry firearms in public, the
First Amendment does not cover exercises of that right that are intended to
place persons in fear of bodily injury or death. Although the mere carrying of
firearms is not sufficient to establish an intent to intimidate, an armed group
of neo-Nazis brandishing arms and chanting neo-Nazi slogans at a public rally
may qualify as an uncovered threat under First Amendment.
123
Nor can arms-carriers use words that incite others to engage in these sorts
of actions, at least where the speaker intends that imminent lawless activity
occur and there is a likelihood that it will imminently occur.
124
Thus, law
enforcement officers would have the power to arrest any armed protester who
communicates to fellow arms-bearers that they should use their weapons to
inflict immediate harm on those present or threaten others with imminent
death or bodily injury.
These and other forms of menacing-by-firearm would not be covered by
the First Amendment. Although it might be difficult to enforce limits on
threatening and inciting exercises of open carry in the context of a public
protest, the First Amendment poses no obstacle to law enforcement’s arrest
of arms-bearers for breach of peace, public disorder, or unlawful assembly
where they engage in unlawful brandishing or other conduct.
C. M
ANNER AND PLACE REGULATIONS
In addition, even if it is a form of expression, the act of openly carrying
firearms would be subject to ordinary content-neutral time, place, and
manner regulations.
125
There are several regulatory options to consider. One
is to generally ban persons from participating in a protest while wearing masks
or otherwise concealing their identities. Another is to restrict expressive arms-
bearers to “open-carry zones” or other designated areas during a public
protest.
126
Perhaps most significantly, in light of the safety concerns that have
122. See Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally
proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person
or group of persons with the intent of placing the victim in fear of bodily harm or death.”); Watts
v. United States, 394 U.S. 705, 708 (1969) (holding that “true threats” are not covered by the
Free Speech Clause).
123. See Black, 538 U.S. at 360 (defining uncovered intimidation); see also Michael Dorf,
Constitutional Arithmetic Post-Charlottesville: Sometimes One Plus One Equals Zero, D
ORF ON LAW
(Aug. 21, 2017), http://www.dorfonlaw.org/2017/08/constitutional-arithmetic-post.html.
124. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (defining uncovered incitement as
speech that advocates unlawful action that is both imminent and likely to occur).
125. See Ward v. Rock Against Racism, 491 U.S. 781, 790–91 (1989) (explaining that content-
neutral regulation of time, place, or manner of speech is subject to intermediate scrutiny).
126. See Shapiro, supra note 24, at 4–6 (proposing “open-carry zones”).
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been cited, a ban on the open carrying of loaded firearms at public protests
might survive First Amendment scrutiny.
Insofar as armed protesters raise safety and law enforcement concerns, a
flat ban on appearing at a public event while wearing a mask would diminish
such concerns to a degree. Although it would not prevent open carry itself, a
masking ban would make violations of firearm and other laws easier to
enforce. It might also reduce the apprehension of protest participants, who
may view masked gunmen as more threatening than the ordinary armed
protester.
In order to preserve First Amendment rights, officials would need to
carefully draft a masking ban such that it did not target political protests or
arms-bearers. A content-neutral law or ordinance, one that is not designed to
be selectively enforced against only arms-bearing protesters, would stand
some chance of surviving First Amendment scrutiny.
127
The safest course
would be to enact a very narrow ban on wearing masks, such as a ban on
concealing one’s identity during the commission of a crime. Of course, that
sort of ban would not unmask all potentially violent protesters. However, it
would provide a basis for law enforcement to intervene where circumstances
suggest criminal activity is afoot.
Officials might also try to separate open carriers from other protesters by
adopting “open-carry zones.” These zones would be specific places at a protest
or along a parade route where open carry would be permitted.
128
On its face,
this kind of place regulation seems like it would be reasonably effective in
terms of reducing the potential for violence at public protests while
preserving the free speech rights of open carriers.
Zoning is a very common regulatory tactic at public protests. Speakers
are frequently confined to specific areas or spaces during public protests and
demonstrations.
129
Under First Amendment doctrine, a content-neutral open-
carry zone would have to be narrowly tailored to address important
governmental concerns. The government would rely on the same concerns
discussed earlier, namely that firearms are a threat to public safety and/or a
deterrent to the exercise of expressive rights.
130
Open-carry zones would not
ban armed protests. They would instead limit the places where protesters
could openly display firearms.
One problem with the open-carry zone is that it might exacerbate, rather
than resolve, the government’s public safety and expressive chill concerns.
This would probably not be a concern if all those placed in the zone were
127. See, e.g., Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 206 (2d Cir.
2004) (upholding New York’s anti-mask statute on ground that wearing mask is not sufficiently
expressive to be covered by the First Amendment).
128. See Shapiro, supra note 24, at 4–6.
129. See Zick, supra note 52, at 591–606 (discussing use and effects of speech zoning and
other spatial restrictions).
130. See supra notes 103–12 and accompanying text.
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248 IOWA LAW REVIEW [Vol. 104:223
advocates for open carry rights—as, for example, in the hypothetical discussed
earlier. However, assuming a broader expressive right to openly carry firearms
is recognized, zoning could bring armed protesters and counter-protesters
together in the same small pen or zone. That would seem to make armed
conflict more, rather than less, likely.
The zoning option raises an important point about trading off free
speech rights in the context of armed protests. As officials seek to reduce the
possibility of violence and intimidation, they may be tempted to take measures
that negatively impact the First Amendment rights of protesters and counter-
protesters. Thus, in order to reduce the potential for violence, they might
reduce the number of protesters that are allowed in certain places or restrict
spontaneous gatherings that are hard to police.
In other words, zoning may ultimately diminish, rather than protect, First
Amendment rights.
131
Open-carry zones could limit armed speakers to certain
out-of-the-way locations, where discharge of firearms is less likely to harm the
general public. Zoning might also make it less likely that those inside the zone
will engage in robust expressive activities—both with one another and with
those located outside the zone. If the concern at an open public protest is that
speakers will trim their sails out of fear of armed reprisal, that sort of
intimidation seems more likely to occur in the close quarters of an armed pen
or zone. Thus, displacing protesters, whether armed or not, in an effort to
reduce tensions or in furtherance of public safety poses a distinct danger to
the First Amendment rights of all protesters.
132
Other measures that negatively impact peaceful protest in order to
respond to the special concerns raised by armed protests would raise similar
First Amendment concerns. For instance, the denial of permits on grounds
related to the content of the proposed event, or the identity of the speakers,
would violate the First Amendment.
133
So too would charging a fee to armed
protesters that was higher than the fees charged to other protesters, or that
varied depending on the likelihood that violence might occur at the event.
134
Further, restricting or prohibiting certain groups of protesters from
assembling in a particular place, or at a particular time, would also violate
their First Amendment speech and assembly rights. Finally, enforcement of
131. See Zick, supra note 52, at 591–606 (discussing various harms to free speech from zoning
and other spatial tactics).
132. See Z
ICK, supra note 26, at 1–2 (discussing controversy over free speech zone constructed
at the 2004 Democratic National Convention in Boston, which a federal court described as an
“internment camp” and a “pen”).
133. See, e.g., Schneider v. New Jersey, 308 U.S. 147, 164 (1939) (holding that authorities may
not exercise unbridled discretion to decide which pamphlets may be distributed in public places).
134. See Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 132–33 (1992) (invalidating
variable permit fee).
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“unlawful assembly” or public “riot” laws against otherwise peaceful protesters
would raise serious First Amendment concerns.
135
A final option, which has thus far escaped commentators’ notice, is to
require (either through permit regulations or other means of enforcement)
that armed protesters carry only unloaded firearms. Even assuming one has a
free speech right to display a firearm at a protest, that right does not
necessarily include a right to display a loaded firearm. I consider below
whether the Second Amendment would permit a restriction on the carrying
of unloaded firearms at public protests.
136
The First Amendment concern is,
of course, distinct.
Although an arms-carrier could argue that carrying a loaded firearm is
intended to express something distinctive in terms of Second Amendment
rights, in order to come within the First Amendment’s coverage the act would
have to be likely to be understood by an audience.
137
However, absent some
communication beyond the act of open carry itself, whether a firearm is
loaded or unloaded would be known only to the carrier. In context, a public
audience would not likely understand what the carrier was seeking to express
through the act of loading the firearm. In terms of audience understanding,
the only visible “expression” is the open carrying of the firearm. Thus, even
in contexts where open carry might be expressive, as during protests
centering on Second Amendment rights, speakers could not claim that the
loading of the firearm was itself an aspect of covered speech. If this is correct,
a Second Amendment proponent seeking refuge under the First
Amendment’s free speech guarantee may gain only the right to demonstrate
or protest in public carrying an unloaded firearm.
In sum, it is possible that courts might recognize a narrow Free Speech
Clause right to openly carry firearms at public protests about or concerning
the Second Amendment or the subject of gun rights including open carry. It
is not likely that they will recognize a broader expressive right to open carry.
Any limited expressive rights could be subject to content-neutral place
measures, such as anti-masking laws and open-carry zoning. The First
Amendment may ultimately protect only the right to openly carry an
unloaded firearm. If so, the First Amendment would be of little value to
proponents of public Second Amendment rights—at least assuming the point
is to openly carry a firearm capable of being discharged.
135. See generally John Inazu, Unlawful Assembly as Social Control, 64 UCLA L. REV. 2 (2017)
(discussing the offense of “unlawful assembly” and its enforcement in the contexts of public protests).
136. See infra Section IV.E.
137. See Spence v. Washington, 418 U.S. 405, 409–11 (1974) (holding that conduct can be
expressive where a speaker intends to convey a message and an audience is likely to understand
what the speaker is communicating).
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250 IOWA LAW REVIEW [Vol. 104:223
D. EXPRESSIVE ASSOCIATION AND “PEACEABLE” ASSEMBLIES
The First Amendment also protects a right to “peaceably” assemble with
others.
138
Over the years, the Supreme Court has transformed the Assembly
Clause into a right of “expressive association.”
139
That right, which is now
generally considered ancillary to the free speech right, protects joining with
others for the purpose of engaging in expressive activities. Thus, a group that
joins together expressly to advocate for gun rights, like the National Rifle
Association, generally possesses First Amendment rights to communicate its
chosen messages, determine its membership criteria, and choose its own
members.
140
Restrictions on open carry could implicate the First Amendment right of
expressive association. Merely belonging to a social club that involves the use
or enjoyment of firearms would not bring a firearms possessor within the
coverage of the expressive association right.
141
However, if the group was
formed to express a point of view about Second Amendment rights, the right
may be invoked in challenges to certain open carry restrictions. Thus, for
example, participants in the hypothetical gun rights rally discussed above
might be covered by the right of expressive association and might invoke that
right to challenge a range of open carry regulations.
This could provide an important additional measure of protection for
arms-carriers. If a measure interferes with the group’s ability to communicate
its pro-Second Amendment message, the government would have to justify it
under a heightened scrutiny standard that requires a showing that it is necessary
to serve a significant interest.
142
Thus, under the expressive association
doctrine, it would be more likely that a court would demand a showing of
actual violence or effect on expressive rights and consider more carefully
whether a restriction on collective expression is tailored to any harm shown.
There are a couple of potential objections to raising the right of
expressive association in the context of my hypothetical open carry public
protest. First, it might be argued that the restriction does not interfere with
any right of the group to express a pro-gun message. Rather, the measure
merely requires that when they do so, participants appear at a public protest
unarmed. This reprises the question whether there is an expressive element
to the open carry of firearms at public protests. The Supreme Court has been
quite deferential to associations in terms of both the description of the
group’s message and the extent to which government regulations are alleged
138. See JOHN D. INAZU, LIBERTY’S REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY 20–62 (2012).
139. See id. at 63–150 (explaining the gradual transformation from assembly to association).
140. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 653–56 (2000) (invalidating anti-discrimination
law on grounds that it violated First Amendment right to associate for expressive purposes).
141. See N.Y. State Rifle & Pistol Ass’n v. City of New York, 883 F.3d 45, 67–68 (2d Cir. 2018)
(holding that regulation affecting persons wishing to engage in recreational and competitive
firearms activities did not implicate or violate First Amendment right of expressive association).
142. See Dale, 530 U.S. at 655–60 (applying heightened scrutiny to state anti-discrimination law).
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by groups to interfere with that message.
143
Assuming the same deference
would be afforded the organizers of the pro-firearms rally, the right of
expressive association would indeed be implicated.
There is another First Amendment consideration, this one arising from
the language of the Assembly Clause—the actual source of the modern right
of expressive association.
144
The provision covers the right to “peaceably”
assemble. Not much is known about the original understanding of the term
“peaceably,” although evidence from early commentary suggests that it
indicates assemblies were considered protected so long as they were consistent
with public peace and public order.
145
Thus, public assemblies that were
either violent or illegal would not be considered “peaceable,” but gatherings
that raised no imminent prospect of violence or disorder would be covered
by the assembly right.
146
No court has ruled on whether an armed assembly at a public protest is
“peaceable” under the terms of the Assembly Clause. As discussed further
below, early state laws did prohibit the public carrying of firearms by
paramilitary organizations.
147
They support the proposition that a narrow
class of armed assembly—the private militia—could be banned from public
places. These unlawful assemblies would not be covered by either the First
Amendment or Second Amendment.
However, it seems doubtful that merely carrying a firearm openly in the
presence of others would, by itself, disqualify a pro-Second Amendment
group from invoking the assembly/association right. It is true that law
enforcement and prosecutors have enforced “unlawful assembly” laws in ways
that sometimes fail to distinguish imminently threatening or otherwise
dangerous assemblies from others.
148
However, as noted, the states have
overwhelmingly decided to permit some form of open carry.
149
The mere act
of demonstrating with a firearm, as part of a group organized to advocate
Second Amendment rights, would not be enough to render an assembly
unpeaceable or unlawful. Some act of breaching the peace, other than the act
of carrying a firearm (where that act is legal), would likely be required to
render open carry itself non-peaceable. Unlawful or non-peaceable assemblies
143. See id. at 653 (“As we give deference to an association’s assertions regarding the nature of its
expression, we must also give deference to an association’s view of what would impair its expression.”).
144. See generally I
NAZU, supra note 138 (examining the history of the Assembly Clause).
145. See Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA
L. REV. 543, 560–69
(2009) (recounting early American understanding of the right of peaceable assembly).
146. See Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture,
16 U.
PA. J. CONST. L. 949, 968–93 (2014) (examining early history of public assemblies).
147. See infra notes 160–72 and accompanying text.
148. See generally Inazu, supra note 135 (discussing enforcement of “unlawful assembly” in the
context of public protests).
149. See Open Carry: State by State, supra note 11 (providing comprehensive survey of state
open carry laws).
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252 IOWA LAW REVIEW [Vol. 104:223
would be those that pose a significant risk of violence or communicate a
threat.
150
E. E
XPRESSIVE CHILL AS A GROUND FOR LIMITING OPEN CARRY
Another issue, again from the perspective of the First Amendment, is
whether carrying firearms at public protests in some manner infringes the
free speech and assembly rights of unarmed protest participants. The theory
would be that the presence of firearms “chills” expressive activity by making
participants apprehensive or concerned about their physical safety.
151
This
would curb dissent and more generally suppress the exercise of First
Amendment rights.
The expressive “chill” argument relates to the general concern, discussed
earlier, that First Amendment and Second Amendment rights are inherently
incompatible in the context of public protests.
152
The question is whether
protest participants could invoke the First Amendment as a ground for
restricting open carry rights that a legislature or court had previously
recognized.
As discussed earlier, we can assume that there is at least a potential
tension between the act of carrying firearms and the act of engaging in protest
activities. For some, protesting in the presence of armed counter-protesters
heightens tensions, engenders fear, and intimidates protesters. Some will
either not participate in protests or will trim their sails for fear that expression
will lead to violent reactions from armed protesters.
Under current precedents, the concern about “chilling” First
Amendment rights at public protests does not provide a valid basis for
restricting or banning Second Amendment rights. Three separate
considerations support this conclusion.
First, the Supreme Court has held that the mere prospect that speech
may be chilled or inhibited by some future governmental action does not
constitute a cognizable harm under the First Amendment.
153
It has held that
150. Professor Dorf has argued more broadly that most armed protest groups can be
considered non-peaceable. See Dorf, supra note 123 (“As a simple matter of common sense, a
march or rally by people who are heavily armed is not an exercise of what the First Amendment
calls ‘the right of the people peaceably to assemble.’ Even a child knows that.”). However, as
Professor Dorf appears to recognize, the mere fact of open carry by participants is not adequate
evidence to support suppressing an assembly. See id. (“Does that mean that every march or rally by
people carrying weapons can be banned? No.”). The participants must presumably do something
more than openly carry firearms to evince an intent to do or threaten violence. Id.
151. For discussions of the concept of expressive chill, see Leslie Kendrick, Speech, Intent and
the Chilling Effect, 54 W
M. & MARY L. REV. 1633, 1649–50 (2013); Henry P. Monaghan,
Constitutional Fact Review, 85 C
OLUM. L. REV. 229, 268–69 (1985); Frederick Schauer, Fear, Risk
and the First Amendment: Unraveling the “Chilling Effect”, 58 B.U. L. R
EV. 685, 692–701 (1978);
Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. R
EV. 112, 142–43 (1997).
152. See supra Section II.C.
153. See Laird v. Tatum, 408 U.S. 1, 11 (1972) (holding that subjective chill is not a
cognizable injury).
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the subjective fear or concern that government officials are engaged in
surveillance or other activities that impact expressive concerns is not an
adequate basis for challenging those actions on free speech and association
grounds.
154
By the same logic, in the context of public protests, the merely
subjective fear or concern that the presence of firearms places protesters in
danger of bodily injury or death would not suffice as a cognizable injury or
harm. Without more, protesters could not challenge statutory or other public
carry protections on the ground that they “chill” public expression.
Second, in the public protest scenario, the allegedly chilling activity is
that of private, not governmental, actors. The discomfort and fear in this
context stem directly from the (presumptively lawful) acts of private arms-
carriers. In the parlance of constitutional law, the challenge relates to private
action rather than state action. The only action taken by the state is the
authorization of open carry, which we are again presuming to be a decision
within its police power. While it is true that the government may have
authorized the exercise of Second Amendment rights in public places in this
scenario, the purported injury relates directly to an individual’s decision to
carry a firearm at a public protest and not any unlawful act of government.
This sort of expressive “chill” argument is not cognizable.
155
Third, many things protest participants do and say can be intimidating
or even speech-inhibiting. Protesters and counter-protesters yell, engage in
demonstrative expressive conduct, and sometimes disobey legal restrictions
on speech and assembly for disruptive purposes. Public events, particularly
large protests and demonstrations, are not for the faint of heart. Courts that
recognize this reality are not likely to conclude that the mere subjective fear
of violence, without more, is a valid justification for restricting or prohibiting
open carry during public protests.
156
IV. D
ISARMING PUBLIC PROTESTS
As Part III’s analysis indicates, the First Amendment is likely to play a
relatively limited role in terms of influencing the scope and exercise of open
carry rights at public protests. Whether and how open carry will be permitted
at public protests will largely be determined by a combination of Second
Amendment, state law, and local enforcement considerations. This Part does
154. See id. at 13–14 (“Allegations of a subjective ‘chill’ are not an adequate substitute for a
claim of specific present objective harm or a threat of specific future harm.”); see also Clapper v.
Amnesty Int’l, 568 U.S. 398, 410–20 (2013) (concluding that plaintiffs’ allegations that they
might be subject to surveillance by federal law enforcement agencies failed to establish standing
to challenge surveillance program).
155. See Monica Youn, The Chilling Effect and the Problem of Private Action, 66 V
AND. L. REV.
1473, 1477 (2013) (proposing that private chill is properly attributable to government only
where the state has violated some rule or “trespassed a constitutional norm”).
156. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969) (“But,
in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome
the right to freedom of expression.”).
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254 IOWA LAW REVIEW [Vol. 104:223
not address whether there is a Second Amendment right to openly carry
firearms in public places. Rather, it focuses on the menu of options currently
available to state and local officials in terms of regulating open carry at public
protests. Thus, assuming some form of public carry will be recognized in a
particular jurisdiction, the question is what options are available to harmonize
or reconcile public expression and firearms at public protests.
A. E
XISTING FIREARMS OFFENSES
We can begin with some low-hanging fruit. On some occasions, including
in one instance at the 2017 Charlottesville rally, individuals have discharged
their weapons near or in the direction of protesters.
157
There is, of course, no Second Amendment right to discharge a weapon
into a crowd of protesters or counter-protesters. Nor do public arms-bearers
have a right to use or brandish firearms in unlawful or intimidating ways.
158
Putting aside any instances of valid self-defense, there is no Second
Amendment right to discharge a weapon with the intent to harm another or
place a person in fear of imminent bodily injury or death.
Thus, enforcement of criminal laws prohibiting the use of firearms to
menace, assault, murder, or commit acts of domestic terrorism would not
violate the Second Amendment. They constitute the floor, or minimum
degree, of regulation necessary to assure that public protests do not become
bloodbaths.
Of course, there are severe limitations with regard to these regulations.
They punish, but often do not prevent, firearms offenses. Further, as with
many of the regulations discussed below, there are significant policing
challenges associated with enforcing these laws in the context of public
protests.
159
For example, distinguishing the menacing or angry display of
firearms from the non-threatening sort may be difficult in the context of a
crowded and contentious protest. The limited point here is that there are
criminal laws already on the books that restrict the brandishing and use of
firearms at public protests.
B. B
ANNING ARMED PRIVATE MILITIAS AND OTHER ARMED ASSEMBLIES
About half the states, including those recognizing open carry rights, ban
private militias and paramilitary groups from parading or drilling in public
places while armed or limit their right to do so.
160
These laws have a long and
157. See Robles, supra note 5.
158. See, e.g., Fla. Stat. Ann. § 790.053(1) (West 2017) (allowing a person who is licensed to
carry a concealed firearm to “briefly and openly display the firearm to the ordinary sight of
another person, unless the firearm is intentionally displayed in an angry or threatening manner,
not in necessary self-defense”).
159. See infra Part V.
160. See, e.g., VA. CODE ANN. § 18.2-433.2 (2014); see also ARK. CODE ANN. § 5-71-302
(2016); CAL. PENAL CODE § 11460 (West 2011); COLO. REV. STAT. § 18-9-120 (West 2012);
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established historical pedigree. Even assuming there is a Second Amendment
right to open carry, bans on armed private militias are likely to survive Second
Amendment challenges.
In Presser v. Illinois, decided in 1886, the Supreme Court observed that a
state law prohibiting bodies of men from associating together as military
organizations, or drilling or parading with firearms, would not violate the
Second Amendment.
161
Presser does not definitively resolve the Second
Amendment question, since it was decided before the right to keep and bear
arms was incorporated against the states.
162
However, Heller interpreted Presser
as standing for the proposition that the Second Amendment does not prevent
states from prohibiting “private paramilitary organizations” from parading in
public with firearms.
163
Given Heller’s statements and originalist foundations,
states can likely enforce longstanding prohibitions on the presence of armed
paramilitary groups at public protests.
Enforcement of the paramilitary laws could have a significant effect on
open carry at public protests. At protests like the “Unite the Right” event in
Charlottesville, paramilitary groups with long rifles raised some of the greatest
concerns in terms of safety and the potential chilling of expression. Some
individuals openly carrying arms in Charlottesville self-identified as members
of “militia” groups.
164
The city of Charlottesville has recently filed a lawsuit
seeking to enjoin a number of these groups from returning to the city for
future protests.
165
If successful, the lawsuit will set a precedent for excluding
armed private militia groups from public protests. Owing to First Amendment
concerns, the city could not prevent the groups themselves from attending
future protests. But they could require that they do so without openly carrying
firearms.
CONN. GEN. STAT. § 53-206B (2012); FLA. STAT. ANN. § 790.29 (West 2017); GA. CODE ANN.
§ 16-11-151 (2011); IDAHO CODE § 18-8103 (2016); 20 ILL. COMP. STAT. ANN. § 1805/94A (West
1992); LA. STAT. ANN. § 14:117.1 (2004); MICH. COMP. LAWS ANN. § 750.528A (West 2004
& Supp. 2018); MINN. STAT. ANN. § 609.669 (2018); MO. REV. STAT. § 574.070 (2018); MONT.
CODE ANN. § 45-8-109 (2009); NEB. REV. STAT. ANN. § 28-1481 (LexisNexis 2015); N.J. STAT.
ANN. § 2C:39-14 (West 2016); N.M. STAT. ANN. § 30-20A-3 (West 2016); N.Y. MIL. LAW § 240(6)
(MCKINNEY 2012); N.C. GEN. STAT. § 14-288.20 (2017); OKLA. STAT. tit. 21, § 1320.10 (2015);
OR. REV. STAT. § 166.660 (2003 & Supp. 2018); 18 PA. CONS. STAT. ANN. § 5515 (West 2015);
11 R.I. GEN. LAWS § 11-55-2 (2002); S.C. CODE ANN. § 16-8-20 (2015); TENN. CODE ANN. § 39-17-314
(West 2010); WASH. REV. CODE ANN. § 9A.48.120 (West 2015).
161. Presser v. Illinois, 116 U.S. 252, 254–65 (1886).
162. See id. at 265.
163. District of Columbia v. Heller, 554 U.S. 570, 621 (2008).
164. See Duggan, supra note 94 (discussing presence of militia groups in Charlottesville).
165. Laura Jarrett, Charlottesville Suing to Stop Private Militias at Future Rallies, CNN
(Oct. 12, 2017, 11:04 AM), https://www.cnn.com/2017/10/12/politics/charlottesville-militia-
lawsuit/index.html. Several militia groups have voluntarily agreed not to attend future rallies and
demonstrations in Charlottesville; see John Early, 3 Militia Groups Connected to Unite the Right Rally
Settle Lawsuits, NBC29.
COM (May 30, 2018, 12:46 PM), http://www.nbc29.com/story/38204693/
settlements-from-unite-the-right-05-16-2018.
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256 IOWA LAW REVIEW [Vol. 104:223
Of course, the private paramilitary laws do not apply to the unaffiliated
individual who openly carries a firearm at a public protest. In order to
prohibit individuals from engaging in open carry under the terms of the state
bans, the group in question would have to, at a minimum, organize itself as a
military organization. This could limit the effect of the armed private militia
bans. Some groups will self-identify as citizen or private militia, as they did in
Charlottesville.
166
However, in other cases, an inquiry into the group’s
organizational history, structure, uniforms, practices, and other indicia that
the group has organized as a military unit might be required.
An organized group that appears at a public protest with firearms visible
may be questioned in order to determine whether the private armed militia
ban applies. Another option would be to address the application of the private
armed militia ban in advance, for instance through permitting requirements.
However, that option will work only where the putative militia group is the
applicant rather than just part of the crowd that shows up on the day of a
permitted event. It also requires either that the group self-identifies as a
militia or military group or that permitting authorities have the necessary facts
to determine whether a group is subject to the ban.
Another complication, applicable to at least some armed paramilitary
bans, is that they require a showing that the person arrested has the purpose
or intent of furthering civil disorder.
167
This mens rea requirement might
preclude enforcement of the law against some persons involved with armed
and organized militias.
Although there are some enforcement difficulties with such laws, Heller
strongly suggests that bans on armed paramilitary or militia groups would
withstand Second Amendment challenge.
168
These laws are one potentially
potent tool for restricting the presence of armed groups at public protests.
A separate set of state laws prohibit groups from parading, marching, or
simply “associating” in public with firearms.
169
Some commentators maintain
that these laws also fall under what might be called the “Presser exception” to
Second Amendment coverage.
170
However, there are two potential
166. See Duggan, supra note 94.
167. See, e.g., V
A. CODE ANN. § 18.2-433.2(1) (2014).
168. District of Columbia v. Heller, 554 U.S. 570, 675–76 (2008) (Stevens, J., dissenting).
169. See ALA. CODE § 31-2-125 (LexisNexis 2016); FLA. STAT. ANN. § 870.06 (West 2017);
GA. CODE ANN. § 38-2-277 (2011); IDAHO CODE § 46-802 (2014); 20 ILL. COMP. STAT. 1805/94
(West 1992); KAN. STAT. ANN. § 48-203 (2005); KY. REV. STAT. ANN. § 38.440 (LexisNexis 2013);
LA. STAT. ANN. § 29:31 (2007); ME. STAT. tit. 37-B, § 342 (2001 & Supp. 2017); MASS. GEN. LAWS
ch. 33, §§ 129–31 (1999); MINN. STAT. ANN. § 624.61 (West 2018); MISS. CODE ANN. § 33-1-31
(2010); NEV. REV. STAT. § 203.080 (LexisNexis 2015); N.H. REV. STAT. ANN. § 111:15 (West 2013); N.Y.
MIL. LAW § 240 (McKinney 2012); N.C. GEN. STAT. § 127A-151 (2017); N.D. CENT. CODE § 37-01-21
(2014); OKLA. STAT. ANN. tit. 44, § 23 (2014); 30 R.I. GEN. LAWS § 30-12-7 (2016); TEX. GOV’T
CODE § 437.208 (West Supp. 2017); WASH. REV. CODE § 38.40.120 (West 2003); W. VA. CODE
ANN. § 15-1F-7 (LexisNexis 2014 & Supp. 2018); WYO. STAT. ANN. § 19-8-104 (2015).
170. See Tirschwell & Lefkowitz, supra note 119, at 179–80.
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complications with that claim. First, it is not clear that the exception the Court
seemed to recognize in Heller is broad enough to apply to any and all
gatherings of two or more persons. After all, the Court explicitly referred to
“private paramilitary organizations.”
171
Second, neither Presser nor Heller
otherwise addressed the public exercise of Second Amendment rights. The
claim that government can ban all armed assemblies, regardless of their
nature or the mens rea of their participants, assumes a narrow public Second
Amendment that the precedential record does not seem to affirm.
In addition, there may be enforcement complications with state armed
assembly laws. Organized parades and marches, particularly ones that have
been permitted, may be readily identifiable. However, at public gatherings it
may not always be clear who is assembling with whom. There may be questions
concerning the applicability of armed assembly laws to spontaneous
gatherings, or individuals who happen to be participating in the same event
or occupying the same public space.
In sum, although state anti-paramilitary laws are on solid constitutional
footing, it is less clear that Presser and Heller authorized broader bans on armed
assemblies. Both types of laws also raise enforcement difficulties, including
identification of covered associations and organizations.
C. G
OING ARMED TO THE TERROR OF THE PEOPLE
A few states have laws that prohibit carrying firearms “to the terror of the
people.”
172
In some others, going armed “to the terror of the people” has been
a common law offense since the nineteenth century.
173
This crime, which
prohibits a form of intimidation-by-firearm, has deep roots in English
common law.
174
As with armed paramilitary bans, this lineage would help in
cases where states need to defend enforcement of “armed to the terror of the
people” laws.
171. Heller, 554 U.S. at 621.
172. See, e.g., S.C.
CODE ANN. § 22-5-150 (2015) (prohibiting any person from going “armed
offensively, to the terror of the people”).
173. See O’Neill v. State, 16 Ala. 65, 67 (Ala. 1849); State v. Huntly, 25 N.C. (3 Ired.) 418,
418 (1843); State v. Staten, 232 S.E.2d 488, 490 (N.C. Ct. App. 1977); Simpson v. State, 13 Tenn.
(5 Yer.) 356, 357–58 (1833); see also Saul Cornell, The Right to Keep and Carry Arms in Anglo-
American Law: Preserving Liberty and Keeping the Peace, 80 L
AW & CONT. PROB., no. 2, 2017,
at 11, 11–12 (discussing early common law concerning public arms-bearing).
174. See 2 W
ILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 110 (1832)
(“The offence of riding or going armed, with dangerous or unusual weapons, is a crime against
the public peace, by terrifying the good people of the land; and is particularly prohibited by the
statute of Northampton.”). Under the common law rule, because carrying a dangerous weapon
(such as a firearm) in populated public places naturally terrified the people, it was a crime against
the peace—even if unaccompanied by a threat, violence, or any additional breach of the peace.
See Chune v. Piott (1615) 80 Eng. Rep. 1161, 1162 (“Without all question, the sheriffe hath
power to commit . . . if contrary to the Statute of Northampton, he sees any one to carry weapons
in the high-way, in terrorem populi Regis; he ought to take him, and arrest him, notwithstanding
he doth not break the peace in his presence.”).
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258 IOWA LAW REVIEW [Vol. 104:223
In some recent instances, state law enforcement authorities have charged
“going armed to the terror of the people” as a means of disarming protesters
and counter-protesters.
175
For example, North Carolina authorities arrested a
protester for “going armed to the terror of the people” who had appeared at
the public site of a rumored KKK rally in Durham with his semi-automatic rifle
in hand.
176
North Carolina permits the open carry of firearms. However, its
case law provides that a person is guilty of the offense of “going armed to the
terror of the people” if he arms himself with an “unusual or dangerous
weapon” and goes upon the public highways with the purpose of terrifying
the public.
177
In the Durham case, police had received complaints from
bystanders who had seen the armed person and reported to law enforcement
officers on the scene that they were frightened.
178
As this example shows, in
states where open carry may otherwise be permitted, the offense of “going
armed to the terror of the people” could be deployed to disarm protesters
and counter-protesters who arrive at protests openly carrying firearms.
As mentioned, one significant thing prohibitions on “going armed to the
terror of the people” have going for them is historical lineage. Heller suggests
that state laws with long historical pedigrees, including measures banning
armed private militias, are likely to be considered consistent with the Second
Amendment.
179
Even assuming there is a statutory or constitutional right to
open carry in a particular state, laws prohibiting “going armed to the terror
of the public” may validly limit that right. Relatively few states have such laws
or recognize the common law offense.
180
Other states, as well as localities with
some legislative flexibility, could enact this offense or recognize it in case law.
As the Durham incident shows, “going armed to the terror of the people”
might be cited as a basis for disarming some protesters. Much depends,
however, on how this offense is charged and enforced. Most notably, if the
subjective fear of bystanders is used as the sole predicate for effectively banning
open carry in public places, as it appears it may have been in the Durham case,
175. See Lithwick & Li, supra note 21.
176. See Virginia Bridges, A Durham Man Brought a Semi-Automatic Rifle to a Rumored KKK Rally.
Did He Break the Law?, H
ERALD SUN (Sept. 6, 2017, 9:30 AM), http://www.heraldsun.com/news/
local/counties/durham-county/article171511767.html.
177. See State v. Dawson, 159 S.E.2d 1, 11–12 (N.C. 1968) (describing elements of the crime
and upholding conviction where defendant, armed with a carbine and four pistols, drove on the
public highways at night, firing bullets into a store and two homes).
178. See Lithwick & Li, supra note 21.
179. See District of Columbia v. Heller, 554 U.S. 570, 674–75 (2008) (suggesting
longstanding militia bans do not violate Second Amendment); id. at 627 (observing that limits
on certain weapons are “fairly supported by the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons’”).
180. See Early, supra note 165; Jarrett, supra note 165.
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2018] ARMING PUBLIC PROTESTS 259
Second Amendment concerns may arise.
181
The offense would not be a limit
on certain forms of open carry, but a broad prohibition on open carry rights
recognized under state laws.
There are other potential impediments to using this offense to limit open
carry at protests. First, the law or offense may be very difficult to enforce.
Officers may have difficulty discerning which armed protesters are
frightening or terrorizing protest participants or members of the public. This
concern could be mitigated by using proxies or factors such as the type of
weapon carried, the manner in which it is carried, and the reactions of
bystanders to determine whether the offense has been committed. Second,
the offense itself may be too vague to provide proper notice to arms-carriers
concerning their criminal liability.
182
The elements of the offense, which
generally require a person to openly carry a dangerous or unusual weapon
with the intent to frighten or terrorize another, may fail to place persons
openly carrying firearms on notice concerning the specific forms of public
carry that are prohibited. Vagueness issues may lead to arbitrary or biased
enforcement by law enforcement.
183
Thus, persons affiliated with certain
groups, such as the KKK, might be targeted for arrest. Finally, prosecutors
may have difficulty proving the requisite intent or purpose—to frighten or
terrorize the public by openly carrying firearms.
184
Thus, as in the case of armed militia bans, there are interpretation and
enforcement concerns with regard to “going armed to the terror of the
people.” Of course, in cases where violent or menacing use a firearm is
involved, there is no need to resort to these laws or offenses. “Going armed to
the terror of the people” may be a charge deployed in cases of what appear to
otherwise be peaceful forms of open carry. Again, the potential danger is that
authorities will use this offense to disarm anyone based on the reported
subjective fears of bystanders. This would enable officials to disarm persons
based on a form of subjective “chill.”
185
181. The frequency of charges might lend some credence to this concern. In 2016, North
Carolina officials charged “going armed to the terror of the people” over three hundred times.
See Bridges, supra note 176.
182. See, e.g., Papachristou v. Jacksonville, 405 U.S. 156, 171 (1972) (holding vagrancy ordinance
unconstitutionally vague).
183. See, e.g., Lovell v. Griffin, 303 U.S. 444, 452–53 (1938) (invalidating local ordinance that
vested unbridled discretion concerning distribution of materials on public streets in city official).
184. Cf. Virginia v. Black, 538 U.S. 343, 359–61 (2003) (invalidating Virginia threats law on
grounds that it required only that government proved a cross-burning occurred, without any
further proof of intent to intimidate).
185. See supra Section III.E (rejecting argument that open carry can be limited owing to
concerns about expressive chill).
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260 IOWA LAW REVIEW [Vol. 104:223
D. PLACE AND TIME/EVENT REGULATIONS
Heller emphasized that Second Amendment rights are not absolute.
186
Depending, of course, on how a future Court interprets public Second
Amendment rights, reasonable regulations concerning the place or time of
their exercise might be constitutional.
Heller specifically recognized that the right to bear arms is subject to
certain place regulations.
187
The Court observed that the right to keep and
bear arms does not extend to certain “sensitive places.”
188
Heller singled out
government buildings and school facilities as examples.
189
However, the
Court did not indicate that these places exhaust the category of “sensitive
places.”
Lower courts interpreting Heller’s “sensitive places” language have held
that public places including parking lots and national park lands constitute
“sensitive places” where keeping and bearing firearms can be prohibited.
190
States currently prohibit open carry at or near other “sensitive places,”
including city halls, health care facilities, elementary schools, polling places,
national and local monuments, and public transportation facilities.
191
Some
states with open carry laws also limit open carry in certain populous cities.
192
Under similar reasoning, states could likely ban open carry on or near capitol
grounds and on university campuses. Note that all of the listed places are
popular protest venues. Thus, the “sensitive places” exception to Second
Amendment coverage could significantly limit the presence of openly carried
firearms at public protests and similar events.
Of course, again assuming there is some right to openly carry firearms in
public, the place exception would presumably not apply to all public
properties. For instance, public parks are traditional forums for the exercise
of expressive rights. Although Heller did not clarify what precisely made school
and government buildings sensitive, one might surmise that it was concerned
that the primary mission or purpose of those properties might be undermined
186. District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
187. Id.
188. Id. at 626–27.
189. Id.
190. See, e.g., United States v. Dorosan, 350 Fed. App’x 874, 875–76 (5th Cir. 2009)
(concluding that a parking lot belonging to the U.S. Postal Service was a sensitive place); United
States v. Masciandaro, 648 F. Supp. 2d 779, 790 (E.D. Va. 2009) (“Although Heller does not define
‘sensitive places,’ the examples given—schools and government buildings—plainly suggest that
motor vehicles on National Park land fall within any sensible definition of a ‘sensitive place.’”).
191. See, e.g., D.C. Code § 7-2509.07(a) (West 2012) (prohibiting the carrying of firearms in
the places listed and other locations).
192. See, e.g., 18 P
A. CONS. STAT. ANN. § 6108 (West 2015) (allowing open carrying of
handguns everywhere in the state of Pennsylvania, except Philadelphia, where a person must be
licensed to carry a firearm in order to openly carry); id. (open carry of long guns prohibited in
Philadelphia);
VA. CODE ANN. § 18.2-287.4 (2014 & Supp. 2018) (prohibiting open carry of
handguns in certain populous cities and counties).
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2018] ARMING PUBLIC PROTESTS 261
by the potential for armed confrontation. Public parks, by contrast, provide a
space for the exercise of constitutional rights. Thus, it is harder to make the
case that the presence of firearms is incompatible with the basic operation of
a public park.
We might approach the issue from the perspective of time rather than
place. Thus, perhaps Heller’s “sensitive places” language could be extended to
what we might refer to as “sensitive events”—protests, pickets, demonstrations
and the like.
193
These events would be deemed sensitive owing merely to the
fact that firearms would pose a potentially lethal danger to those assembled.
One problem with this approach is that it transforms what appears to be a
relatively narrow place exemption into something far broader. Since literally
any public gathering might be considered “sensitive” under this reasoning,
the “sensitive events” approach would effectively operate as a ban on firearms
at public protests, demonstrations, and rallies. To be sure, that may or may
not be constitutional under some future Supreme Court precedent. However,
such a determination does not seem to follow from Heller’s cryptic “sensitive
places” exemption. A separate problem is that according all public events
“sensitive” status solely on the basis of the presence of firearms again presumes
an answer to the question whether the Second Amendment has a public
dimension. Assuming that it does, the assumption of sensitivity is suspect.
Notwithstanding such concerns, a few states have expressly restricted or
banned open carry at certain events or during certain times, including
specifically at demonstrations, pickets, and other public events.
194
Thus, some
state laws prohibit non-law enforcement personnel from carrying firearms
within 1000 feet of a “demonstration.”
195
North Carolina law makes it a crime
for
[A]ny person participating in, affiliated with, or present as a
spectator at any parade, funeral procession, picket line, or
demonstration upon any private health care facility or upon any
public place owned or under the control of the State or any of its political
193. For an argument that firearms ought to be excluded from political rallies and
demonstrations under Heller’s “sensitive places” exception, see Morgan, supra note 119.
194. See A
LA. CODE § 13A-11-59 (LexisNexis 2015); CAL. PENAL CODE § 17510 (West 2012);
D.C. Code § 7-2509.07(a)(14) (West 2012); 430 Ill. Comp. Stat. § 66/65(a)(10) (West 1992);
720 I
LL. COMP. STAT. § 5/24-1(a)(8) (West 2010 & Supp. 2018); MD. CODE ANN. CRIM. LAW § 4-208
(2002 & Supp. 2017); N.C.
GEN. STAT. § 14-277.2 (2017).
195. See, e.g., D.C. Code § 7-2509.07(a)(14) (West 2012); see also A
LA. CODE § 13A-11-59
(LexisNexis 2015). Alabama law defines “demonstration” as follows:
Demonstrating, picketing, speechmaking or marching, holding of vigils and all
other like forms of conduct which involve the communication or expression of views
or grievances engaged in by one or more persons, the conduct of which has the
effect, intent or propensity to draw a crowd or onlookers. Such term shall not include
casual use of property by visitors or tourists which does not have an intent or
propensity to attract a crowd or onlookers.
Id.
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262 IOWA LAW REVIEW [Vol. 104:223
subdivisions to willfully or intentionally possess or have immediate
access to any dangerous weapon.
196
Note that these event- or time-based restrictions (limits that apply during
demonstrations and other similar events) are broader in scope than the
specific place limitations discussed earlier. Thus, rather than focusing solely
on particular “sensitive places” such as elementary schools and polling places,
laws like North Carolina’s apply in any public place. The laws are presumably
intended to further government interests in public safety and perhaps
preservation of First Amendment speech and assembly rights. Again, the
government presumably bears the burden of demonstrating that these
concerns are justified and that the regulations are aimed at a real and not
hypothetical problem.
197
Assuming they can carry that burden, there is the
matter of tailoring. While it is true that the regulations are tailored insofar as
they only apply during the duration of a demonstration or similar event, some
courts might nevertheless fault legislatures for failing to limit open carry bans
to particularly sensitive places, as Heller suggests. Moreover, depending on the
definition of “demonstration” the state law adopts, a time- or event-based
regulation could effectively ban the presence of firearms in public parks and
other public places where expression occurs.
Assuming they are consistent with the Second Amendment, states and
localities could enforce place-based and time/event-based restrictions in a
number of ways. For instance, they could condition a protest permit on the
agreement not to openly carry firearms in certain places or during the
duration of a permitted event. This option would only be effective, in terms
of limiting open carry at public protests, in the event the permit applicants
were the ones intending to carry firearms at the event. Note that assuming the
spatial or event-based restriction is a reasonable limit on open carry, the
permit requirement would not constitute an unconstitutional condition on
the right to keep and bear arms.
198
A perhaps more effective means of
enforcing place and time/event restrictions is to use law enforcement
checkpoints or other means of disarming protesters seeking access to the
identified “sensitive place” or arms-restricted event.
Thus far, we have considered some broad-based place or event
regulations. But states and localities could also adopt narrower measures—for
example, regulations intended to physically separate open-carry protesters
from others attending public protests. As discussed in Part II, localities could
spatially restrict those who openly carry firearms to “open-carry zones,” or
196. N.C. GEN. STAT. § 14-277.2(a) (2017) (emphasis added).
197. See, e.g., State v. Oaks, 594 S.E.2d 788, 793 (N.C. Ct. App. 2004) (noting violent and deadly
consequences that may be associated with the carrying of deadly weapons at demonstrations).
198. See generally Kathleen M. Sullivan, Unconstitutional Conditions, 102 H
ARV. L. REV. 1413 (1989)
(discussing the concept of unconstitutional conditions as applied to various constitutional rights).
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2018] ARMING PUBLIC PROTESTS 263
other locations along the protest route.
199
Depending on their dimensions
and placement along the protest route or within the protest venue, such
measures may survive First Amendment scrutiny.
200
As a limited restriction on
open carry rights, zoning may also survive review under the Second
Amendment.
As in the First Amendment context, officials may have a difficult time
defending “open-carry zones” under the Second Amendment.
201
Thus, some
courts may view zones as potentially exacerbating, rather than reducing, the
potential for armed confrontation. Armed protesters and counter-protesters
may be confined to crowded zones, making it more likely that armed
confrontation will occur.
202
Whether “open-carry zones” would serve
government interests relating to facilitating the exercise of expressive rights
is also an open question—particularly with regard to the expressive rights of
those confined to the zone, but also to some extent with regard to those
situated outside but near the zones. A court looking for a reasonable
connection between the spatial restriction and the government’s interests in
safety and order might find this specific solution wanting.
To summarize: Limits on open public carry at designated “sensitive
places” stand the best chance of surviving review under the Second
Amendment. Heller expressly recognizes this particular limit on the right to
keep and bear arms.
203
States and, where permitted, localities, would be able
to limit open carry of firearms in certain places that are particularly popular
among protesters—including state capitols, government buildings, public
plazas near sensitive places, and college campuses. It is less clear whether
governments could limit open carry during demonstrations or protest. It is
unlikely that such regulations can be justified under Heller’s sensitive places
rationale. Some courts might view such measures skeptically, in part owing to
the fact that they are potentially broad restrictions on the public exercise of
Second Amendment rights. However, it is also possible that courts will
consider such regulations to be justifiable and narrowly tailored in light of
public safety and other concerns. Finally, “open-carry zones” and other spatial
restrictions may be suspect under the Second Amendment. States and
localities that resort to zoning would bear the burden of convincing courts
that the measures are adequately tailored to interests in public safety and
preserving expressive rights. Depending on how the zones are constructed,
this might not be possible.
199. See supra notes 128–30 and accompanying text (discussing expressive chill argument).
200. See supra notes 128–30 and accompanying text.
201. See supra notes 130–32 and accompanying text (discussing First Amendment implications
of open-carry zones).
202. See supra notes 131–32 and accompanying text.
203. District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008).
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264 IOWA LAW REVIEW [Vol. 104:223
E. MANNER REGULATIONS
In addition to place and time/event restrictions on open carry,
jurisdictions could regulate the manner in which firearms are openly carried.
The proposals discussed here are akin to manner of speech regulations,
rather than categorical bans on menacing displays of firearms or “going
armed to the terror of the people.” They would impose narrower restrictions
on the display or use of firearms at public protests.
Officials can obviously require that openly carried firearms are properly
holstered (in the case of handguns) or carried (in the case of long guns).
204
These would be reasonable safety regulations, not bans or restrictions on the
practice of open carry. These kinds of regulations would not prevent the
discharge or unlawful use of firearms, but they might make such incidents less
likely to occur.
A more effective means of reducing the potential for deadly or violent
encounters at public protests where open carry is allowed is to limit open carry
to unloaded firearms. Many states have enacted such restrictions, particularly
with regard to long guns.
205
As discussed earlier, the display of unloaded
firearms may ultimately be all that the First Amendment protects with regard to
the expressive display of arms.
206
Does the Second Amendment go further
and protect a right to openly carry a loaded firearm?
This sort of manner regulation would permit an individual to keep and
bear arms during a public protest but would effectively render the firearms
non-deadly weapons. In the many jurisdictions where concealed carrying of
handguns is allowed, a ban on loaded long guns is likely to be upheld. The
204. See, e.g., TEXAS PENAL CODE § 46.02 (2016) (providing that some licensed carriers can
display firearms so long as they are carried in a shoulder or belt holster).
205. See, e.g., Iowa Code § 724.4(1) (2018) (prohibiting open carry of loaded long guns
); N.D.
CENT. CODE § 62.1-03-01(1) (Supp. 2017) (person may openly carry a handgun during
daylight hours, as long as the gun is unloaded); T
ENN. CODE ANN. § 39-17-1308(a)(1) (West 2010
& Supp. 2018) (person may openly carry a long gun if it is unloaded); U
TAH CODE ANN.
§§ 76-10-505(1)(b), 76-10-523(2)(a) (LexisNexis 2017) (prohibiting open carry of loaded long
guns unless person has a concealed carry permit); V
A. CODE ANN. § 18.2-287.4 (2014 & Supp.
2018) (prohibiting the open carry of certain types of loaded rifles and shotguns in specific
populous cities and counties). In North Dakota, a person may openly carry a handgun only
during daylight hours, as long as the gun is unloaded. N.D.
CENT. CODE § 62.1-03-01(1). If the
person has a concealed weapons permit, he or she may carry the handgun loaded at any time of
day. N.D.
CENT. CODE § 62.1-03-01(2)(a). Law enforcement officials may also be able to enforce
an unloaded weapons requirement in other circumstances. See Ian Cummings & Glenn E. Rice,
Confused about Antifa, Protests and KC Gun Laws? Here’s the Deal, K
AN. CITY STAR (Sept. 14, 2017,
1:50 PM), http://www.kansascity.com/news/local/article173300641.html (discussing instance
where police ordered protesters to remove ammunition from their guns under local concealed
carry ordinance, even though state law generally allowed open public carry).
206. See supra Section III.C.
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2018] ARMING PUBLIC PROTESTS 265
loaded long gun ban would leave in place an alternative means of self-defense
(the core of the Second Amendment right).
207
However, where no such alternative is available, manner regulations that
effectively disarm an individual may raise serious Second Amendment
concerns. Limiting open carry to unloaded firearms could make public
protests safer, in the same way that an outright ban would. Insofar as chilling
effects on speech are a concern, an unloaded open carry requirement would
not likely reduce these effects (since most might assume the firearms are
loaded, at least absent knowledge of the local jurisdiction’s laws). Where the
right to carry firearms in public is recognized under state law or judicial
decision, this kind of manner restriction might be viewed as too severe since
it undermines the core self-defense justification for the right to keep and bear
arms.
In sum, while the First Amendment may not require the state to recognize
a right to openly carry a loaded firearm, the Second Amendment and state laws
well might. In particular, jurisdictions that impose a ban on loaded long guns
with no alternative for concealed carry of a loaded handgun, or that ban
loaded handguns with no option for carrying loaded long guns, could face
serious Second Amendment and state law challenges.
F. A
RMS-SPECIFIC RESTRICTIONS
Finally, officials might adopt and enforce measures that restrict the types
of “Arms” that protesters and counter-protesters can openly carry. As
discussed earlier, Heller does not recognize a right to keep and bear any
weapon one wishes, but only Arms in common use when the Second
Amendment was ratified.
208
Heller, of course, did not address the specific types
of firearms that can be prohibited at public protests or in public places
generally.
Five states and the District of Columbia currently ban the open carrying
of handguns.
209
Six states and the District of Columbia either ban the open
carrying of long guns or require a permit to do so.
210
Whether these bans and
restrictions are consistent with Heller’s articulation of the Second
207. See, e.g., Jackson v. City & Cty. of S.F., 746 F.3d 953, 961 (9th Cir. 2014) (“[F]irearm
regulations which leave open alternative channels for self-defense are less likely to place a severe
burden on the Second Amendment right than those which do not.”).
208. See Heller, 554 U.S. at 626 (“From Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right was not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for whatever purpose.”).
209. See C
AL. PENAL CODE §§ 26350, 25850 (West 2012); D.C. CODE Ann. § 22-4504.01 (West Supp.
2012); F
LA. STAT. ANN. § 790.053(1) (West 2017); 720 ILL. COMP. STAT. 5/24-1(a)(10) (West 2010
& Supp. 2018); N.Y.
PENAL LAW § 265.01(1) (McKinney 2017); S.C. CODE ANN. § 16-23-20(12) (2015).
210. See C
AL. PENAL CODE § 26400(a) (Supp. 2018); D.C. CODE § 22-4504.01 (West Supp.
2012); F
LA. STAT. ANN. § 790.053(1) (West 2017); 720 ILL. COMP. STAT. 5/24-1(a)(10) (West
2010 & Supp. 2018); M
ASS. GEN. LAWS ch. 140, § 129C (West 2002); MINN. STAT. ANN.
§ 624.7181 (West 2018); N.J.
REV. STAT. ANN. § 2C:39-5(c) (West 2016).
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266 IOWA LAW REVIEW [Vol. 104:223
Amendment’s coverage has been a subject of recent litigation, and several
petitions to the Supreme Court to decide the issue have been denied.
211
As
scholars have noted, prohibitions on carrying concealed and lethal firearms
in public are of longstanding origin.
212
Once again, under Heller, this
historical pedigree is a plus—although it is not necessarily dispositive. Thus
far, courts have been receptive to public safety justifications in cases involving
open public carry.
Some states ban assault-style and large capacity rifles such as the AR-15.
Heller indicates that weapons “most useful in military service” are outside the
scope of the Second Amendment.
213
On that basis, as well as its conclusion
that such a ban is justified by the state’s public safety interests, the Fourth
Circuit recently upheld Maryland’s ban on assault rifles.
214
Removing assault-
style rifles from public protest events would obviously be an important
constraint on what some consider intimidating open carry activities in that
specific context.
States also impose bans on the open carry of a variety of other weapons.
For example, Illinois prohibits any person from carrying “a tear gas gun
projector or bomb or any object containing noxious liquid gas or substance,
other than an object containing a non-lethal noxious liquid gas or substance
designed solely for personal defense carried by a person 18 years of age or
older.”
215
Illinois also bans the public possession of machine guns, “any rifle
having one or more barrels less than 16 inches in length or a shotgun having
one or more barrels less than 18 inches in length,” and “any bomb, bomb-
shell, grenade, bottle or other container containing an explosive substance of
over one-quarter ounce for like purposes, such as, but not limited to, black
powder bombs and Molotov cocktails or artillery projectiles.”
216
These are
likely within the class of “dangerous and unusual weapons” that Heller
indicated were not within the coverage of the Second Amendment.
217
They
were also not the sorts of weapons in “common use” when the Second
Amendment was ratified.
218
Thus, Heller itself recognizes that a range or class
of deadly weapons is not within the Second Amendment’s coverage. These
weapons can also be excluded from public protests.
211. See, e.g., Peruta v. California, 137 S. Ct. 1995 (2017), cert. denied, (raising question
whether Second Amendment protects concealed carry in public where open carry is banned);
Norman v. Florida, 138 S. Ct. 469 (2017), cert. denied, (raising question whether Florida’s open
carry ban is constitutional).
212. See Joseph Blocher & Darrell A.H. Miller, Lethality, Public Carry, and Adequate Alternatives,
53 H
ARV. J. LEGIS. 279, 286 n.47 (2016) (collecting examples of early state laws prohibiting open
and concealed carry of certain lethal weapons).
213. Heller, 554 U.S. at 626.
214. See Kolbe v. Hogan, 849 F.3d 114 (4th Cir.), cert. denied, 138 S. Ct 469 (2017).
215. 720 I
LL. COMP. STAT. 5/24-1(a)(3) (West 2010 & Supp. 2018).
216. Id. § 5/24-1(a)(7).
217. Heller, 554 U.S. at 627 (quoting 4 W
ILLIAM BLACKSTONE, COMMENTARIES *148–49 (1769)).
218. Id. at 627.
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Finally, as scholars have noted, Arms are not necessarily limited to only
the lethal variety.
219
Tasers and smart guns could serve the same core self-
defense purpose attributed to handguns, thus raising the intriguing question
whether states could limit open carry to non-lethal firearms. Whether the
Second Amendment guarantees a right to keep and bear lethal arms is an
open question. Among other things, the answer depends on how one
interprets Second Amendment dangerousness and “common use” scope
limitations, the availability of non-lethal alternatives capable of providing an
adequate means of self-defense, and the actual justifications for protecting the
Second Amendment right to keep and bear arms.
220
At present, these are all open questions. A law restricting open carry to
non-lethal firearms would go a long way toward reconciling the exercise of
First Amendment and Second Amendment rights at public protests. It would
reduce the possibility of deadly violence (although not all arms-related
violence), and may reduce the inhibiting effects on expression that many
associate with the presence of deadly firearms.
221
In sum, there are many alternatives available to state and local officials
who are troubled by the open presence of firearms at public protests.
Unlawful uses, armed paramilitary groups, and various forms of intimidation
and domestic terrorism can be prohibited. Even in jurisdictions that otherwise
protect open carry, the open carry of firearms can likely be banned in a variety
of sensitive places and at certain sensitive events. In some circumstances, states
and localities may be able to defend bans on the open carry of loaded
weapons. Finally, certain particularly dangerous weapons, including assault-
style military rifles, can be excluded at protest events. None of these measures
will guarantee that firearms will never be used to inflict injury at public
protests. None will perfectly reconcile or harmonize expression and firearms
in that context. However, along with appropriate and lawful regulations of
expressive activities, appropriate and lawful regulations of open carry at
public protests might ensure that the two rights can co-exist.
V. T
HE FUTURE PUBLIC SECOND AMENDMENT
The Supreme Court may ultimately recognize some form of Second
Amendment right to keep and bear arms in public places. Obviously, any
219. See Blocher & Miller, supra note 212 (proposing and analyzing a hypothetical ordinance
that limits public carrying to non-lethal weapons). See generally Craig S. Lerner & Nelson Lund,
Heller and Nonlethal Weapons, 60 H
ASTINGS L.J. 1387 (2009) (discussing the regulation of nonlethal
firearms technologies under current Second Amendment standards); Eugene Volokh, Nonlethal
Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life,
62 S
TAN. L. REV. 199 (2009) (discussing regulations of stun guns and other nonlethal weapons).
220. See Blocher & Miller, supra note 212, at 289–90 (discussing non-lethal weapons and self-
defense); id. at 293–300 (discussing possible justifications and their relevance to a regulation
barring lethal open carry).
221. See supra note 16 and accompanying text.
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268 IOWA LAW REVIEW [Vol. 104:223
decision of this nature will significantly shape the future of public Second
Amendment rights. But whether or not the Supreme Court weighs
in—indeed, even if it does so and declines to recognize a right to open carry
—it seems likely that in most jurisdictions the open carrying of firearms will
be permitted in many public places and present at public protests. Thus, many
jurisdictions will be faced with the issues raised by open carry at public protests
and other events. Part II described the public dimensions of the First
Amendment and Second Amendment as we know them today. Part IV
examined a variety of regulatory options that might affect whether and how
Second Amendment rights are exercised in public places, and whether they
are consistent with public First Amendment and Second Amendment
doctrines. Part V now broadens the inquiry to ask what our long experience
with public First Amendment rights might tell us about the future public
exercise of Second Amendment rights. It begins with several general lessons
or observations based upon that experience. Turning to more specific
concerns, I argue that the future of our public Second Amendment will
depend, in large part, on three things: (1) how Second Amendment rights
are exercised and policed at public events such as protests and
demonstrations; (2) the balances or tradeoffs that will occur when expression
and firearms rights come into tension or conflict with one another in public
places; and (3) the nature and success of efforts to clarify or settle the
justifications for the public exercise of Second Amendment rights.
A. G
ENERAL LESSONS FROM THE PUBLIC FIRST AMENDMENT
First Amendment and Second Amendment rights are obviously distinct
in many descriptive and other respects.
222
Public exercises of these rights raise
distinctive interpretive and enforcement concerns. The point of drawing
some lessons from our public free expression experience is not to suggest that
the public Second Amendment ought to be governed by public First
Amendment doctrines and principles.
223
Indeed, as I will note, there are
already notable differences in the development of the public dimensions of
these rights. Rather, it is to highlight the broader events and influences that
shaped the recognition of public expressive rights, many of which will likely
also affect the development of the public Second Amendment.
When assessing the nascent public Second Amendment, one initial
observation concerns the historical arc of the two rights. We have a rich
tradition of both arms-keeping and public expression. Initially, both rights
were well-recognized and generally accepted by the American public.
224
We
222. See Magarian, supra note 17, at 55–57 (discussing normative differences between speech
and firearms activities).
223. See id. at 54–57 (describing descriptive and doctrinal distinctions between free speech
and the right to keep and bear arms).
224. See generally Abu El-Haj, supra note 146 (examining early exercises of public speech and
assembly rights).
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have witnessed a gradual attitudinal change with regard to public expression.
Starting in the early 20
th
Century, public dissent and assembly were often
treated much the same way that some have come to view the open carrying of
firearms—as insurrectionist, intimidating, and criminal.
225
Speech critical of
government and assembling with others to advocate its overthrow were
considered inherently dangerous activities—“clear and imminent dangers,”
as the Court sometimes characterized them.
226
As such, restrictions on public
expression permeated American law. Owing to the perceived inherent
dangers associated with such activities, even peaceable speech and assembly
were not always tolerated.
227
One important limit on early speech and assembly rights was the fact that
there was no recognized right to use public places, including streets and
parks, for expressive purposes.
228
Until the late 1930s, the government
controlled these places or “forums,” as they would later be called, just as any
other private property owner did—that is to say, the state as title-holder could
determine who was invited to speak or gather in public places and who was to
be excluded.
229
It would take the better part of four additional decades to
establish the nature and scope of expressive rights in public places.
230
All of which is to say that the public First Amendment has not always
protected the exercise of speech and assembly rights. Public, official, and
judicial support for these rights has ebbed and flowed. Recognition of rights
to speak, assemble, proselytize, pamphleteer, and engage in other activities in
public was not guaranteed, but rather was hard-earned. Creating public
“breathing space” for these rights required a confluence of social, political,
and constitutional events. Among other things, broad social and
constitutional movements relating to labor, suffrage, and civil rights helped
to expand interpretations of public First Amendment rights.
231
The fact that
such activities are no longer considered a presumptive danger to society is the
product, in part, of a shift in First Amendment jurisprudence that occurred
225. See id.; see also ZICK, supra note 26 (discussing nature of dissent in early free speech and
assembly cases).
226. See Abrams v. United States, 250 U.S. 616, 627–28 (1919) (Holmes, J., dissenting); Debs
v. United States, 249 U.S. 211, 216 (1919); Schenck v. United States, 249 U.S. 47, 52 (1919).
227. See I
NAZU, supra note 138, at 20–62 (discussing history of the right of assembly and effect
of “emerging anticommunist hysteria” on the right of assembly); see also El-Haj, supra note 146,
at 561–69 (describing early limits on the right to assemble in public places).
228. See El-Haj, supra note 146, at 580–84 (discussing evolution of courts’ approach to
public forums).
229. See Hague v. Comm. for Indus. Org., 307 U.S. 496, 515–16 (1939) (recognizing for the
first time, in dictum, a First Amendment-based right of access to public streets).
230. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983)
(describing the categorical approach to expressive rights in public places); Cox v. Louisiana,
379 U.S. 536, 545–46 (1965) (invalidating the conviction of the leader of a civil rights group
protesting racial segregation).
231. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270–72 (1964) (observing that debate on
matters of public concern should be “uninhibited, robust, and wide-open”).
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270 IOWA LAW REVIEW [Vol. 104:223
nearly 150 years after ratification. Over time, the Supreme Court became a
champion of public speech and assembly rights.
Although certainly part of an historical and constitutional tradition, in
jurisprudential terms the Second Amendment, like the First Amendment, was
largely dormant for most of the nation’s history. The Supreme Court seemed
to have concluded, coincidentally also in 1939, that the Second Amendment
protected only a collective or militia-based right.
232
This effectively stymied
the jurisprudential development of the Second Amendment, including its
public dimension. Heller birthed a private Second Amendment, again leaving
the public dimension of the right largely unsettled. Historically, states have
restricted openly carrying firearms in public, much as officials imposed
restrictions on public speech and assembly activities. However, in the past
three decades, legislatures have loosened or removed restrictions on open
carry.
The “Roberts Rules of Order” concerning expressive activities in public
places were established largely with reference to the Supreme Court’s public
forum doctrine.
233
Today, speakers are subject to different rules and
regulations depending on what kind of public property they seek to access for
expressive purposes.
234
Government is authorized to regulate where, when,
and sometimes how public expression occurs, in the interest of furthering
public safety, order, and other collective interests.
235
In the case of the Second
Amendment, these Roberts Rules are primarily being fashioned by state
legislatures eager to expand public open and concealed carry rights. In the
absence of a Supreme Court decision, legislative recognition of open carry
rights has provided a valuable boost to the development of the public Second
Amendment. States are currently constructing the specific rules that will be
used to refine the scope and exercise of open carry rights at public protests
and in public places more generally.
As in the case of early speech and assembly rights, firearms rights have
not been embraced everywhere or to the same extent in all jurisdictions. Thus,
as discussed, although nearly all states provide some form of protection for
open carrying of firearms, many impose what are essentially time, place, and
232. See United States v. Miller, 307 U.S. 174, 178 (1939) (sustaining indictment under the
National Firearms Act as applied to possession of a sawed-off shotgun). Compare District of
Columbia v. Heller, 554 U.S. 570, 637–40 (Stevens, J., dissenting) (arguing that courts had long
held that the Second Amendment protected only a militia-based right to keep and bear arms),
with Heller, 554 U.S. at 619–26 (interpreting prior precedents as recognizing an individual right
to bear arms in common use).
233. See Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 S
UP. CT.
R
EV. 1, 12 (describing Court’s evolving time, place, and manner doctrine as establishing a
“Roberts Rules” for public expression).
234. See Perry, 460 U.S. at 45–46 (summarizing modern public forum doctrine).
235. See Frisby v. Schultz, 487 U.S. 474, 486–88 (1988) (upholding restrictions on “targeted
picketing” outside the residence of an abortion provider).
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2018] ARMING PUBLIC PROTESTS 271
manner regulations.
236
Among other things, states have identified some
sensitive places where firearms are not allowed, required licenses to carry
firearms in public, and restricted the carrying of loaded firearms.
237
Over time, support for speech and assembly rights has largely eclipsed
the early public skepticism and fear of these activities. As I have indicated, this
took time—decades, in fact. Establishing the First Amendment’s Roberts
Rules for public expression certainly helped in this regard. The public First
Amendment became a reality not through the full and absolute embrace of
the aforementioned dissidents and rogues, but by recognizing the need for
some limits and controls on their expression. Thus, speakers were prohibited
from inciting violence, communicating threats, or uttering “fighting
words.”
238
The First Amendment answered the challenges of public safety,
order, and competing uses of public property not by broadly banning
expression, but by regulating it in ways that reduced the potential for violence,
harm, and disorder.
In the context of public protests, many still view the display of firearms as
a dangerous and unwelcome activity—essentially a form of intimidation.
Arguments equating firearms with violence or unlawful activity are rather
common.
239
So are calls for banning open carry during protests.
240
In this
respect, advocates for open carry face the same sort of skepticism that speakers
and public assemblies did for a good portion of the 20th Century. Some insist
that, by its very nature, and in particular owing to the intimidation and fear
that visible firearms can cause, open carry is inherently incompatible with
public order and safety—not to mention robust public expression.
241
Again, the public First Amendment experience may hold some relevant
lessons in this regard. Over time, there has been a broad shift in public,
judicial, and official attitudes concerning public First Amendment rights.
Today, the public First Amendment protects expression that causes significant
discomfort or raises serious safety concerns. The public First Amendment now
protects a wide range of potentially disruptive and intimidating activities,
including face-to-face proselytizing, picketing, flag burning, and funeral
236. See supra Part IV (analyzing various measures).
237. See, e.g., United States v. Dorosan, 350 Fed. App’x 874, 875–76 (5th Cir. 2009)
(concluding that a parking lot belonging to the U.S. Postal Service was a sensitive place).
238. See Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (holding that incitement is not
covered speech); Watts v. United States, 394 U.S. 705, 708 (1969) (holding that true threats are
not covered speech); Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (holding that
fighting words are not covered speech).
239. See supra note 16.
240. See Feinblatt, supra note 16 (arguing for a ban on open carry at public protests); see also
Frum, supra note 16 (“Within metropolitan areas, there is no reason—zero—that a weapon
should ever be carried openly.”).
241. See supra discussion in Section II.C.
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272 IOWA LAW REVIEW [Vol. 104:223
protesting.
242
The beneficiaries of this expansion have included Jehovah’s
Witnesses, the Ku Klux Klan, anti-abortion sidewalk counselors, flag burners,
funeral protesters, and a virtual rogues’ gallery of agitators and dissidents. In
public places, audiences have been told to avert their eyes when confronted
with expression they find upsetting or offensive.
243
Those operating in the
realm of the modern public First Amendment must have a relatively thick
skin, and a certain degree of “civic courage.”
244
Again, in certain respects, today’s public arms-carrier stands in the
company of the public First Amendment’s long gallery of dissidents. Some
view the open arms-carrier, like the public proselytizer, abortion counselor,
flag burner, and funeral protester, as an inherent threat to public order.
245
Whether that sentiment or perspective can be overcome will depend on a
number of factors which will help define the future of the public Second
Amendment. Supreme Court recognition of open carry rights will obviously
be important. But if Heller is any guide, any Supreme Court decision is likely
to leave many questions open. Thus, for example, the development and
enforcement of the Roberts Rules for open carry will be an important part of
the process. So will public attitudes about the presence of firearms at public
protests and in public places. Whether the public Second Amendment will
demand the sort of thick skin and civic courage of protest participants that
the First Amendment does remains to be seen. Much will depend, as I discuss
below, on how open carry rights are exercised and defended.
246
The open
firearms carrier may be treated as a disruptive, but tolerated, dissident. Or his
actions may be cast as a presumptive crime, rather than the exercise of a
constitutional right.
This brings me to a final lesson, in terms of general approach or rhetoric,
from our long experience with public First Amendment rights. The First
Amendment asserts a blanket prohibition: “Congress shall make no law
. . . abridging the freedom of speech.”
247
However, in public places, absolutist
approaches and arguments gave way to the reality that public expression had
to be subject to certain limits.
248
The Free Speech Clause does not grant
242. See McCullen v. Coakley, 134 S. Ct 2518, 2531–32 (2014) (invalidating abortion clinic
buffer zones that suppressed speech of sidewalk counselors); Snyder v. Phelps, 562 U.S. 443,
464–65 (2011) (overturning civil tort judgment against protesters at military funeral); Texas v.
Johnson, 491 U.S. 397, 418–20 (1989) (invalidating conviction for flag desecration); Cantwell v.
Connecticut, 310 U.S. 296, 308–11 (1940) (invalidating breach of peace conviction stemming
from public proselytizing).
243. See Cohen v. California, 403 U.S. 15, 21 (1971).
244. Doe v. Reed, 56 U.S. 186, 228 (2015) (Scalia, J., concurring).
245. See supra note 242.
246. See infra Section V.C.
247. U.S.
CONST. amend I.
248. Justice Hugo Black’s apparent change of attitude with regard to First Amendment
absolutism is instructive. See, e.g., Hugo L. Black, Assoc. Justice of the Supreme Court, James
Madison Lecture at the New York University School of Law: The Bill of Rights (Feb. 17, 1960),
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2018] ARMING PUBLIC PROTESTS 273
individuals license to say whatever they wish, wherever they wish, in any
manner they desire.
249
The rhetoric of First Amendment absolutism was
tamed, in part, by the actual experience of public expression.
Heller itself expressly rejects Second Amendment absolutism.
250
Yet, as
Professor Joseph Blocher has observed, when it comes to the Second
Amendment much of our political and social discourse still adopts absolutist
terms.
251
The idea that any regulation of the right to keep and bear arms,
including limits on open carry, is intolerable is flatly inconsistent with the
right recognized in Heller.
252
It is also inconsistent with the general conception
of constitutional rights, including First Amendment rights, which grant not
absolute but only limited protections against state interference.
As the public First Amendment demonstrates, absolutist arguments are
short-sighted and ultimately self-defeating. The American public will no more
tolerate unfettered open carry than it will accept unrestricted freedom of
expression. Further, defining the limits of a constitutional right can clarify
and strengthen the core values and purposes of that right. Thus, over time,
arguments about the “core” of the Free Speech Clause have helped courts and
scholars identify its principal justifications and sharpened their articulation
and application.
253
Thus, the actual scope of the public Second Amendment
is likely to be significantly influenced by the nature of the justifications
proffered for its protection. The process of developing these justifications is
perpetual, and there will always be disagreements about what the “core”
includes. However, the “core” of the Second Amendment and the scope of
the public Second Amendment can only be ascertained through application
of a non-absolutist rights framework.
In sum, there is much open carry proponents and regulators can learn
from our experience with the public dimension of First Amendment rights.
in 35 N.Y.U. L. REV. 865, 880 (1960) (expressing the view that the First Amendment did not
admit of any qualifications on the freedom of speech); see also Adderley v. Florida, 385 U.S. 39,
46–47 (1966) (upholding limits on public protest in driveway and curtilage abutting public
jailhouse in an opinion by Justice Black); Harry Kalven, Jr., Upon Rereading Mr. Justice Black on the
First Amendment, 14 UCLA
L. REV. 428, 442–44 (1967) (discussing the question of whether the
First Amendment should be read literally under an absolutist approach, whether there are any
exceptions, and the ensuing “balancing war” (for which Justice Black is partly responsible)).
249. See Cox v. New Hampshire, 312 U.S. 569, 574 (1941).
250. District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (“Of course the right was not
unlimited, just as the First Amendment’s right of free speech was not . . . .”).
251.
Joseph Blocher, Panel IV: Has the Constitution Fostered a Pathological Rights Culture? The
Right to Bear Arms: Gun Rights Talk, 94 B.U.
L. REV. 813, 820–22 (2014). See generally Dan M. Kahan,
The Gun Control Debate: A Culture-Theory Manifesto, 60 W
ASH. & LEE L. REV. 3 (2003) (analyzing the
problems surrounding “the terms in which the gun control debate is cast”).
252. Heller, 554 U.S. at 627.
253. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273–74, 722 (1964) (identifying the
“central meaning of the First Amendment” that public criticism of government must be
protected); Schenck v. United States, 249 U.S. 47, 49–51 (1919) (acknowledging that free speech
right likely extends beyond protection against prior restraints).
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The public First Amendment is the product of decades of experimentation
with the exercise, and limits on the exercise of, expressive rights. We will more
fully understand what the public Second Amendment encompasses and
entails only after similar dynamics have had a chance to act upon it.
B. E
XERCISING AND POLICING OPEN CARRY
A number of different factors will likely influence the future of the public
Second Amendment Roberts Rules and public rhetoric will be part of the
story. However, as the First Amendment experience demonstrates, a large part
of what influences the scope of public constitutional rights is the manner in
which those rights are actually exercised and policed. In other words, the
public First Amendment teaches that the scope of the public Second
Amendment will depend, in part, on the manner in which open carry is
exercised and policed at public protests and similar events.
The public speakers who mounted the earliest challenges to limits on
expressive activities were not a rambunctious crowd. In fact, most were
arrested and convicted even though they were engaged in peaceful, non-
threatening forms of public expression.
254
The early exercises of free speech
and assembly for which litigants sought protection largely took the form of
responsible and non-violent dissent—pamphleteering, proselytizing, and
orderly public speaking. Not all of these speakers were successful in
challenging limits on public speech and assembly.
255
But some were, and the
nature and character of speakers that came before the Court in the earliest
stages of First Amendment interpretation allowed free expression to establish
a public foothold and set the stage for a future expansion of public expressive
rights.
This suggests that the manner in which early open carriers exercise their
rights will have a perhaps significant bearing on the development of the
public Second Amendment. In this respect, it is noteworthy that at least to
date the violence and injuries sustained at public protests and demonstrations
have not been related to the discharge of firearms. At the Charlottesville
“Unite the Right” march, there was a single incident of weapons discharge,
which ultimately led to criminal charges.
256
Most of the violence occurred as
protesters and counter-protesters clashed using sticks, batons, and other
254. See ZICK, supra note 26 (discussing early free speech and assembly cases).
255. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573–74 (1942) (upholding
conviction for breach of peace based upon profanities uttered to local law enforcement); Abrams
v. United States, 250 U.S. 616, 623–24 (1919) (upholding conviction under federal Espionage
Act for distributing circulars advocating disruption of munitions manufacture during wartime).
256. See Bromwich & Blinder, supra note 6 (discussing fatality that occurred at Charlottesville
“Unite the Right” rally).
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weapons.
257
Indeed, thus far, there have been very few reports of gun violence
or unlawful brandishing of weapons at public protest events.
But of course, this could change in an instant. A mass murder or other
catastrophic incident, or worse, a series of them, could at the very least change
the tenor of the debate concerning open carry rights at public protests and in
public places more generally. It is of course true that even mass murders have
so far not produced any meaningful federal gun control measures.
258
But
violence at public protests where First Amendment rights and expressive
traditions are also at issue could threaten an aspect of American free speech
culture in a way that leads to more significant limits on public arms-carrying.
In some respects, then, the future of the public Second Amendment is in the
hands of those who will exercise open carry rights at public protests and
similar events.
Our experience with the public First Amendment also shows that public
acceptance or tolerance of public rights depends on whether they can be
exercised in ways that are generally compatible with the ordinary ebb and flow
of public life. As discussed, the First Amendment’s Roberts Rules impose
certain limits on the exercise of public First Amendment rights.
259
These rules
grant authorities a broad degree of authority to regulate the time, place, and
manner of speech and assembly and to impose order through breach of
peace, public disorder, and unlawful assembly laws. There are, and likely
always will be, important debates about the scope of these powers and
limitations.
260
However, no one seriously maintains that the First Amendment
grants speakers and assemblies an absolute right to exercise their rights as they
please in public places. Limits on public First Amendment rights have been
critical to public acceptance of, or at the very least toleration for, the exercise
of those rights. If the public First Amendment were all mobs and mayhem few,
other than committed anarchists, would support or participate in the exercise
of public speech and assembly rights.
The manner in which public exercises of speech and assembly rights have
been policed has also been critically important to the scope of the public First
Amendment. Over time, the United States has generally adopted a principle
that police officers and other officials have an obligation to ensure, to the
257. See Sheryl Gay Stolberg & Brian M. Rosenthal, Man Charged After White Nationalist Rally
in Charlottesville Ends in Deadly Violence, N.Y.
TIMES (Aug. 12, 2017), https://www.nytimes.com/
2017/08/12/us/charlottesville-protest-white-nationalist.html (describing violent clashes between
protesters and counter-protesters).
258. See Sheryl Gay Stolberg, Why the Push to Ban Rifle ‘Bump Stocks’ Has Slowed, N.Y.
TIMES
(Nov. 8, 2017), https://www.nytimes.com/2017/11/08/us/politics/bump-stocks-congress-national-
rifle-association-mass-shootings.html (discussing legislative gridlock on gun control efforts in the
wake of mass shooting in Las Vegas).
259. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44–46 (1983)
(summarizing modern public forum doctrine).
260. See generally Inazu, supra note 135 (discussing limits on the right of assembly); Zick, supra
note 52 (discussing spatial limits on First Amendment rights).
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276 IOWA LAW REVIEW [Vol. 104:223
extent possible, the exercise of constitutional rights in public places.
261
That
principle does not impose an absolute right or guarantee of protection for
public First Amendment rights. For instance, speakers and assemblies can
cross boundaries that disqualify them from protections when faced with
hostile audiences.
262
In general, however, police protection has assured public
speakers and assemblies that they need not always be polite, quiet, or perfectly
constrained.
In terms of policing the public First Amendment, where officials can
“negotiate” in advance with regard to the basic terms of public protests and
assemblies, they have often been willing to do so.
263
However, insofar as
speakers and assemblies refuse to negotiate or engage in uncooperative or
disorderly behavior, law enforcement will change tactics by escalating force or
taking other steps to maintain public order.
264
In such situations, First
Amendment rights operate as background principles, but enforcement
considerations actually determine the scope of public speech and assembly
rights.
This approach to public First Amendment rights has implications for the
future exercise of Second Amendment rights. For one thing, it strongly
suggests that the scope of public Second Amendment rights will depend to a
substantial degree on how effectively they can be policed. Indeed, this may be
an even more acute concern with regard to open carry, owing to the
potentially lethal consequences of firearms use. So long as law enforcement
can effectively maintain public safety and order at armed protests and in other
public contexts, open carry will not likely be aggressively policed or restricted.
Whether law enforcement can effectively police open carry remains an
open question. Thus far, at least, firearms violence has not posed the greatest
threat to order and safety at public events. However, mass public protests and
even smaller events are challenging assignments for local and state law
enforcement. Adding firearms to the mix will present some distinct
challenges. Again, the most obvious difference in terms of policing expression
versus firearms is that the latter has the capacity to inflict deadly harm.
Moreover, in addition to concerns about the unlawful use of firearms, police
now must confront the fact that they no longer have a monopoly on the
display or potential use of weapons. They must also deal with the possibility of
situational confusion arising from the uncertainty that comes with armed
protests. Is the armed person a lawfully carrying protest participant or an
261. See, e.g., Cox v. Louisiana, 379 U.S. 536, 552 (1965) (invalidating conviction of the leader
of a civil rights group seeking to protest racial segregation); Edwards v. South Carolina, 372 U.S.
229, 238 (1963) (invalidating breach of peace convictions against civil rights protesters).
262. See, e.g., Feiner v. New York, 340 U.S. 315, 320 (1951) (upholding breach of peace conviction
where a hostile crowd threatened a public speaker but speaker refused police orders to desist).
263. See Z
ICK, supra note 26, at 59–60 (discussing “negotiated management” policing strategies).
264. See id. at 59 (discussing “escalated force” model of protest policing).
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active shooter?
265
Finally, police forces may need to be concerned about
whether they have adequate firepower to resist or defend against armed
protesters.
266
It is not yet clear whether the attitude regarding official facilitation of
public speech and assembly rights will carry over to public carry rights. The
general principle that has developed under the First Amendment is that law
enforcement ought to protect speakers from hostile crowds in order to
preserve their free speech and assembly rights.
267
When the public carrying
of firearms is lawful in the jurisdiction where a protest occurs, perhaps a
similar principle will apply. In other words, the default standard would be
protection of the rights-bearer. However, in the First Amendment context,
where circumstances indicate that public order and safety cannot be
preserved, either because the open carrier is threatening others or is being
threatened by others, officers must intervene. Thus, under the Second
Amendment, law enforcement officials will likely endeavor, to the extent
possible, to preserve public carry rights or at least not unduly burden them.
They will act in the case of observable violations, but otherwise exercise
restraint. However, as in the public expression context, this default principle
of non-intervention will be contingent upon the need to preserve public safety
and order.
268
As in the case of public speech and assembly rights, limits on open carry
will not always be perfectly enforced. At large-scale public protests,
participants have been arrested without proper cause or swept up in dragnets
and later released.
269
A similar phenomenon could occur with regard to open
arms-carriers, some of whom may be lawfully exercising open carry rights
when they are arrested. As they have in the First Amendment context,
unlawful arrests of this sort may lead to significant civil liability judgments
under civil rights and other laws.
One final suggestion from the public First Amendment, in terms of
enforcement, is the need for local flexibility in dealing with the exercise of
265. See Molly Hennessy-Fiske, Dallas Police Chief: Open Carry Makes Things Confusing During
Mass Shootings,
L.A. TIMES (Jul. 11, 2016, 5:36 PM), http://www.latimes.com/nation/la-na-dallas-
chief-20160711-snap-story.html (reporting on sniper shooting in Dallas, Texas that claimed the
lives of several police officers).
266. See Heim, supra note 7 (reporting on criticisms of Charlottesville police response to
armed protesters).
267. See, e.g., Cox v. Louisiana, 379 U.S. 536, 545–50 (1965) (invalidating breach of peace
conviction of leader of civil rights group stemming from public protest of racial segregation, even
though a hostile crowd of onlookers was present).
268. Law enforcement’s ability to enforce criminal laws will be complicated not only by the
specifics of public carry rights, but also by the requirements of the Fourth Amendment with regard
to arresting armed protesters. See generally Jeffrey Bellin, The Right to Remain Armed, 93 W
ASH. U. L.
REV. 1 (2015) (discussing intersection between Fourth Amendment and open carry laws).
269. See Haley Draznin, New York to pay $17.9 million to 2004 Republican Convention Protesters,
CNN (Jan. 16, 2004), https://www.cnn.com/2014/01/15/politics/new-york-republican-convention-
settlement/index.html (describing police tactics at national political convention).
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278 IOWA LAW REVIEW [Vol. 104:223
public Second Amendment rights. Time, place, and manner restrictions are
generally fluid measures imposed to meet the circumstances of a particular
event. This is a function of the fact that public protests vary in terms of size,
location, and safety implications. Local responses can be tailored to events as
they occur and develop.
In contrast, many localities are currently stymied in their ability to
respond to public carry at public protests, marches, and demonstrations.
270
As
noted earlier, local laws may be expressly preempted or prohibited by state
laws protecting open carry in public places.
271
Local officials and law
enforcement may need the same or similar flexibility with regard to open
carry as they have with regard to public expression.
C. B
ALANCING EXPRESSIVE AND OPEN CARRY RIGHTS
Another potential influence on the development of the public Second
Amendment will be the balancing of expressive and firearms rights at public
protests and similar events. As the analysis in this Article has shown, tensions
can arise where both First Amendment and Second Amendment rights are
exercised in public places. I have argued that the available evidence does not
demonstrate an inherent incompatibility between robust expression and open
carry. That is not the same thing as claiming speakers and assemblies will not
experience discomfort or even feel subjectively threatened by the presence of
firearms at public events. The form the public Second Amendment will take
is going to depend, in part, on how the public, police, officials, and especially
judges balance or reconcile open expression and open carry.
I have expressed skepticism with regard to abstract claims of expressive
“chill,” specifically in the context of public protests.
272
Courts should be
mindful of the doctrinal and practical limitations of broad chill claims. The
exercise of public expressive rights has always required that speakers and
assemblies muster the fortitude to manage and navigate tensions on the
ground. Further, predictions of public disorder or harm have not sufficed to
justify limiting the exercise of constitutional speech and assembly rights. The
expressive arms-carrier and the open carrier alike are entitled to the same
presumption that subjective concerns about possible violence are not an
adequate reason for limiting the exercise of public constitutional rights.
First Amendment and Second Amendment rights will be balanced
against one another, in part as they are exercised and policed. In addition,
precedents might provide a clue as to how courts will ultimately balance these
rights in the public sphere.
273
Thus, in some cases, the Supreme Court has
270. See generally Schragger, supra note 23 (discussing limits on city authority to deal with
armed protests).
271. See supra note 23.
272. See supra Section II.C.
273. For a discussion of balancing as a form of constitutional reasoning, see generally
T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Y
ALE L.J. 943 (1987).
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concluded that First Amendment rights are of paramount concern, even
where they might infringe or threaten other constitutional rights or interests.
The Court has held, for example, that a cellphone caller’s interest in
maintaining the privacy of his conversations must yield to First Amendment
concerns regarding the distribution of information of public concern.
274
However, the Court has also held that First Amendment rights may sometimes
have to yield when they interfere with the right to vote.
275
Thus, in direct
conflicts between the First Amendment, on the one hand, and other
constitutional rights or interests, freedom of expression only sometimes
prevails.
276
In these cases, there was a direct conflict between First Amendment and
other rights. The situation concerning public expression and open carry is
somewhat different. There is a tension between these rights, or at least there
can be, but they are not necessarily in direct conflict with one another. In that
sense the situation closely resembles the tension between expressive and
abortion rights occasioned by protests and other forms of speech and
assembly near health care clinics. The Supreme Court has upheld some
restrictions on expression near clinics, in part owing to concerns about
preserving access to abortion rights.
277
More generally, it has sought to
navigate or defuse the tensions between exercises of expressive rights in
public places and government interests in safety, order, and repose.
278
This
seems to be the most likely template concerning expressive and open carry
rights—a general balancing of rights and interests, performed on a case-by-
case basis.
In the specific case of expressive and firearms rights at public protests,
there are several possible outcomes with regard to this ad hoc balancing of
interests. Some officials and courts might be convinced that restrictions on
open carry are a necessary means of preserving expressive rights. If so, they
274. See Bartnicki v. Vopper, 532 U.S. 514, 528–30 (2001) (concluding that freedom of
speech outweighed right to privacy in intercepted cell phone conversations); see also Snyder v.
Phelps, 562 U.S. 443, 454–57 (2011) (holding that members of a church who protested at
military funerals and conveyed messages such as “God Hates Fags” could not be held liable for
the common law tort of intentional infliction of emotional distress).
275. See, e.g., Burson v. Freeman, 504 U.S. 191, 206–08 (1992) (plurality opinion) (holding
the right to engage in political speech near polling places could be restricted in the interest of
protecting the unfettered exercise of the right to vote).
276. See id.
277. See, e.g., Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 374–76 (1997)
(upholding fixed buffer zones in part on ground that they were necessary to preserve women’s
access to pregnancy-related services).
278. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (invalidating buffer zone
around abortion clinics on ground that it was not narrowly tailored to address safety and other
state concerns); Hill v. Colorado, 530 U.S. 703, 725 (2000) (upholding state law restricting
certain unwanted approaches near abortion clinics); Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753, 757, 774 (1994) (invalidating broad bubble provision that banned all unwanted
physical approaches, but upholding thirty-six-foot buffer zone and other injunctive provisions).
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280 IOWA LAW REVIEW [Vol. 104:223
may restrict or even ban open carry rights in order to protect free speech and
assembly. Alternatively, in some jurisdictions, officials who lack the authority
or political will to limit open carry rights might instead seek to limit speech
and assembly in order to resolve any conflicts with public carry rights. In fact,
this has already occurred. For example, Virginia’s governor proposed strict
limits on public speech and assembly near the Robert E. Lee memorial in
Richmond, a site that has attracted armed protesters in the past.
279
The
proposed rules would restrict crowd sizes to 500 (down from 5,000) and
require permits for events that attract more than 10 people.
280
Assuming the
state retains its open carry laws, this proposal would drastically reduce free
speech and assembly rights in response to a fear of violence at certain protests.
The most likely scenario, as in the abortion clinic expression cases, is that
local officials will adopt measures designed to accommodate both expressive
and open carry rights. Those measures will be judged primarily by Second
Amendment standards, with some consideration given to the preservation of
First Amendment rights. Heller does not resolve whether any of the proposals
discussed in Part III would violate the Second Amendment. That will also
depend on a number of factors: whether there is a right to carry firearms in
public places, the scope of any such right, how the term “Arms” will be
interpreted, and the standard of review applicable to Second Amendment
regulations.
281
D. J
USTIFYING OPEN CARRY
In addition to the foregoing considerations, the constitutionality of
specific restrictions and the future of the public Second Amendment will
depend on the underlying values or purposes—i.e., self-defense, autonomy,
or the prevention of governmental tyranny—that the Second Amendment is
purportedly intended to serve.
282
Here, too, the free speech experience
highlights some helpful lessons.
The justifications and values associated with First Amendment expressive
rights have been debated and refined over the course of many decades. No
single justification presently controls, in the sense that it is regarded as the
definitive justification for protecting free expression.
283
Instead, the Supreme
279. See Haag, supra note 20 (discussing recent proposal to restrict protests at Lee monument).
280. Id.
281. See, e.g., United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (“[W]e
conclude that a lesser showing is necessary with respect to laws that burden the right to keep and
bear arms outside of the home.”).
282. See Blocher & Miller, supra note 76, at 293–99 (examining Second Amendment theories
as they might relate to restrictions on carrying lethal weapons); Joseph Blocher & Darrell A.H.
Miller, What Is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second
Amendment, 83 U.
CHI. L. REV. 295, 347–54 (2016) (discussing Second Amendment theories).
283. See generally F
REDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY (1982)
(examining various theories that are said to justify protection for freedom of speech).
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Court and most scholars have adopted a pluralistic approach to free speech
justifications, invoking several to justify speech and assembly protections in
public (and other) places.
A concern for speaker autonomy has been important to the development
of free speech jurisprudence. Justifications of this nature adopt the basic
premise that individuals ought to decide for themselves what “speech” entails,
subject to only narrow exceptions.
284
The concept of the “marketplace in
ideas,” which posits that the value of free speech lies in testing truth and falsity
against one another, has also played a critical role in defining the scope of
expressive rights.
285
Finally, the notion that freedom of speech facilitates self-
government by ensuring access to information about matters of public
concern has played a critically important role in justifying speech and
assembly protections, including in public venues.
286
These theories or
justifications have all significantly influenced the development of the First
Amendment, including its public dimension.
Heller observes that the “core” or “central component” of the right to
keep and bear arms is self-defense.
287
Insofar as that justification extends out
of doors, open carry rights will rest on a constitutional footing that may
significantly limit the power to regulate firearms in public places. The right to
keep and bear arms might apply anywhere confrontation could occur,
including at public protests and demonstrations. That would not mean
government would be powerless to regulate open carry in public places.
However, it would influence the nature and scope of such regulations, in the
sense that laws and regulations would need to preserve the ability to defend
oneself in public venues. Thus, for example, regulations that make firearms
more difficult to access or fire could be deemed suspect under this rationale.
Of course, Heller does not purport to fully determine the normative
justifications or values relating to Second Amendment rights in general, or
open carry rights in particular. Thus, it is possible that a future decision might
conclude that open carry serves autonomy values, much as freedom of speech
284. See, e.g., BAKER, supra note 53 (arguing for the “liberty” rationale of free speech over the
“marketplace of ideas” rationale); Martin H. Redish, The Content Distinction in First Amendment
Analysis, 34 S
TAN. L. REV. 113 (1981) (arguing for the abandonment of content distinctions in
first amendment analysis).
285. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); see also
J
OHN MILTON, AREOPAGITICA: A SPEECH FOR THE LIBERTY OF UNLICENSED PRINTING TO THE
PARLIAMENT OF ENGLAND 69 (The Floating Press 2009) (1644) (“Let her and Falsehood grapple;
who ever knew Truth put to the worse, in a free and open encounter?”).
286. See A
LEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF
THE
PEOPLE 24–25 (1960) (discussing self-government and other democratic values associated
with freedom of speech).
287. See District of Columbia v. Heller, 554 U.S. 570, 599, 630 (2008) (recognizing the core
self-defense justification).
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does.
288
This could expand both the places where firearms could be carried,
as well as the types of arms the Second Amendment protects. Thus, just as a
speaker has broad latitude to communicate viewpoints and content, an open
carrier might have a broad right to decide how to exercise open carry rights.
Again, this rationale or justification would affect the scope and nature of the
public Second Amendment.
Other theories and values may also influence the scope and application
of public Second Amendment rights. For example, the Second Amendment
might embrace what some scholars have referred to as a “marketplace of
violence,” similar to the First Amendment’s marketplace in ideas.
289
That
justification could complement or even extend the self-defense value, by
justifying open carry in terms of deterring all manner of threats. Open carry
might also facilitate self-government, for example by deterring or preventing
tyrannical government action.
290
That justification, if accepted, might support
a right to keep and carry the sorts of arms necessary to effectively resist official
uses of force—including in public places.
As the First Amendment example shows, one does not have to have a
unitary theory or single justification for open carry rights. The normative
values of the Second Amendment are not yet fully elaborated or established.
As with expression, the choice of justifications or values will likely impact the
scope of Second Amendment rights and the breadth of the government’s
regulatory authority. Thus, we can add to the already discussed factors likely
to influence the public Second Amendment a theoretical component. At
present, the Second Amendment lacks a clear and cogent set of normative
values. As the First Amendment example shows, those values will be critically
important to building out the public Second Amendment. Thinking them
through now, in the context of actual controversies, can help us determine
whether protesters will carry firearms at all, what kinds of arms they might
carry, and under what circumstances open carry can be restricted.
E. L
OOKING FORWARD
When it comes to constitutional rights, predictions are a perilous
exercise. The First Amendment and Second Amendment are themselves good
examples. Few would have predicted the current status and scope of either
right, at least from their rather humble beginnings.
When venturing to predict or envision the future public Second
Amendment, a principal consideration is the possibility that the Supreme
Court will formally recognize a public right to carry firearms openly and/or
in concealed fashion. Although Heller emphasizes self-defense in the home,
288. See Blocher & Miller, supra note 76, at 294 (examining application of autonomy theory
to Second Amendment).
289. Id. at 295.
290. Id. at 299.
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the decision is not necessarily limited to the private sphere. Indeed, its
language emphasizes the importance of firearms possession to respond to
“confrontation.”
291
Moreover, historically speaking, the right to keep and bear
arms has never been strictly confined to the home. Although it is hardly a
foregone conclusion, it seems likely that a future Supreme Court decision will
recognize some right to carry firearms in public.
The nature and scope of that right might be informed by the sorts of
considerations discussed in this Part. Thus, as the Court waits to decide the
contours of the public Second Amendment, it may be considering how
concealed and open carry rights are being exercised, policed, and regulated.
The Court is likely also waiting for an appropriate case or vehicle, one
involving a particular regulation of the public Second Amendment, in which
to begin expounding on the public dimension of the right.
In the meantime, states and localities will continue to experiment with
permissive, strict, and intermediate public carry regimes. If, as seems likely,
the current pattern holds, we will continue to have arms at some public
protests and in public places more generally. If open carry is used in
intimidating ways, some states and localities (where permitted) may restrict
firearms in certain places or at certain events, such as mass public protests.
They might convince some courts to treat mass protests and other expressive
events as “sensitive places” under Heller, or otherwise to uphold narrow
regulations.
292
But as in the abortion example, where expression and abortion
rights have sometimes been a combustible mix, the likelihood is that
expression and firearms will occupy the same public spaces.
This will likely be the case even if public protests produce mass casualties
owing to firearms use.
293
While it is true that the exercise of open (and
concealed) carry rights will have some impact on the future public Second
Amendment, even abuses of that right will not likely result in a firearms-free
public sphere. We are far more likely to see a patchwork of regulations and
restrictions, designed to preserve Second Amendment and First Amendment
rights. As the patchwork develops, both rights are likely to be burdened to
some extent as they are subject to legislative and judicial balancing. Again,
this is the model that the expression-abortion intersection has followed in
public areas at or near abortion clinics.
Public officials and law enforcement will not permit public protests to
become Wild-West style shootouts in the public square. Peaceful and orderly
protest and open carry can and likely will, at least in most instances, co-exist.
The central burden will fall on law enforcement, which will be tasked with
291. Heller, 554 U.S. at 592 (observing that the Second Amendment “guarantee[s] the
individual right to possess and carry weapons in case of confrontation”).
292. See Morgan, supra note 119.
293. See, e.g., Hennessy-Fiske, supra note 265 (reporting on shooting at Dallas protest).
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applying the layered restrictions on expression and open carry in public
places and at public events.
The abortion clinic example is, again, instructive. Especially during their
early encounters, public expression and abortion rights had an uneasy
relationship.
294
Violence and disorder were not uncommon, as protesters
sought to deny access to abortion services and to harass women seeking
abortions. Over time, however, the rules of engagement were largely worked
out such that both rights can be preserved. We can expect to see similar
tensions in the expression-open carry relationship, particularly in early stages.
There may well be some violent, perhaps even deadly, confrontations
involving firearms at public protests. Such incidents will help define the future
contours of the public Second Amendment. But again, they will almost
certainly not dictate an absolute ban on firearms in public places. If the
experience of the public First Amendment is any guide, the public Second
Amendment will be characterized by a patchwork of regulations that preserve
the basic right but limit its encroachment on other individual rights and
government interests.
VI. C
ONCLUSION
Public protests have become armed and potentially dangerous events.
Some fear that the arming of public protests will chill First Amendment free
speech and assembly rights. Indeed, there is a question whether exercises of
open carry and expressive rights in this context are inherently incompatible.
Thus far, states have overwhelming supported open carry in public
places. And so far, at least, open carry rights have been peacefully exercised.
Whether expressive and open carry rights can be reconciled in the context of
public protests and similar events will depend on many factors. Among them,
of course, is whether the Supreme Court will ultimately decide to recognize a
public right to keep and bear arms.
In the meantime, and in all likelihood in the event of such a decision,
states and localities will have an array of options for diminishing the tension
between these two rights. States and localities already have a variety of
measures at their disposal, including general criminal laws, bans on armed
militias, restrictions on open carry in sensitive places, and other safety
measures. Additional measures can be adopted, assuming states have the
political will to do so. Although some regulations will be easier to defend and
enforce than others, and jurisdictions will need to proceed with caution, this
Article argues that neither the First Amendment nor Second Amendment
generally stands in the way of reasonable limits on open carry at public
protests.
294. See generally JOSHUA C. WILSON, THE STREET POLITICS OF ABORTION: SPEECH, VIOLENCE,
AND
AMERICA’S CULTURE WARS (2013) (detailing the history of abortion protests).
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Of course, none of the measures discussed in this Article will guarantee
that public order and safety will prevail. This has been equally true of the
regulation of First Amendment rights to speak and assemble. The battle in
the courts will only be one determinant of the future public Second
Amendment. As our long and complicated experience with the public
exercise of First Amendment rights shows, what the public Second
Amendment will look like in the future will depend to a large extent on how
open carry rights are exercised, policed, balanced against expressive rights,
and normatively justified. These are the principal factors that transformed
freedom of speech and assembly from presumptive threats to public order
into an accepted part of American constitutional culture.
It is too early to tell whether open carry will follow that path. The public
Second Amendment will take shape as and when similar forces act upon it. I
have predicted that the Supreme Court will ultimately recognize some form
of public Second Amendment right. But as with Heller, the decision will likely
leave many questions unanswered. The answers will be worked out, as they
have in the First Amendment context, as states and localities encounter the
challenges associated with armed protests and armed public places more
generally. If the First Amendment experience provides an appropriate
analogy, some means of keeping and bearing arms will likely be prohibited as
unlawful or uncovered. More generally, Second Amendment rights will be
subject to reasonable time, place, and manner regulations—banned from
certain areas, confined to others, and limited insofar as necessary to preserve
other individual rights and further important public interests.
